BILL ANALYSIS �
AB 2712
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Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 2712 (Daly) - As Introduced: February 21, 2014
SUBJECT : Hazardous materials: Orange County Water District.
SUMMARY : Establishes a multi-agency process for groundwater
clean-up for the Orange County Water District (OCWD).
Specifically, this bill :
1)Makes a legislative finding that the Department of Toxic
Substances Control (DTSC), the Regional Water Quality Control
Board (Regional Water Board), and the Certified Unified
Program Agency (CUPA) 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.
2)Requires the OCWD to submit remediation plans to DTSC, the
Regional Water Board or the CUPA when conducting a remediation
project at a hazardous materials release site located in the
district. Prohibits OCWD from implementing a remediation
project unless the plan for the proposed remediation project
is approved by the DTSC, Regional Water Board, or a CUPA.
3)Requires the OCWD to notify the appropriate regulatory agency
that will be overseeing the district's implementation of the
remediation project.
4)Requires the OCWD to develop a plan for the proposed
remediation project, and to submit the plan for the proposed
remediation project to the appropriate regulatory agency for
review and approval.
5)Provides that if the regulatory agency does not approve the
plan, the OCWD may submit the plan for the proposed
remediation project to the Site Designation Committee within
the California Environmental Protection Agency (Cal/EPA).
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6)Provides that if the OCWD does not submit the disapproved plan
to the site designation committee, the OCWD shall not seek
cost recovery from a responsible party for the hazardous
materials release.
7)Requires the Site Designation Committee to review a
remediation plan submitted to it. After it reviews the plan,
requires the Site Designation Committee to approve or
disapprove the plan or conditionally approve the plan.
8)Prohibits, if the Site Designation Committee disapproves all
or part of the plan, OCWD to seek cost recovery from a
responsible party for a hazardous materials release.
EXISTING LAW :
1)The Orange County Water District Act (OCWD Act) provides the
following:
a) Establishes the OCWD, consisting of specified lands in
the County of Orange, including the Cities of Anaheim,
Fullerton, and Santa Ana.
b) Authorizes OCWD to investigate the quality of the
surface and groundwater within the district to determine
whether the waters are contaminated or polluted, and
authorizes the district to expend funds to perform any
cleanup, abatement, or remedial work to prevent, abate, or
contain the contamination of, or pollution to, the surface
or groundwater of the district.
c) Requires the person causing or threatening to cause the
contamination or pollution to be liable to OCWD for
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.
2)Establishes the Site Designation Committee within the Cal/EPA
to determine the appropriate oversight agency for hazardous
waste cleanup. Requires the membership of the committee to
be the following:
a) Secretary for Environmental Protection;
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b) Director of Toxic Substances Control;
c) Chairperson of the State Water Resources Control Board;
d) Director of Fish and Game;
e) Director of the Office of Environmental Health Hazard
Assessment; and
f) Chairperson of the State Air Resources Board.
FISCAL EFFECT : Not known.
COMMENTS :
Need for the bill : According to the author, "The Orange County
Water District (OCWD) has recently proposed comprehensive
cleanup plans which overlap, in whole, or in part,
geographically and hydro-geologically, with cleanups and other
activities overseen by the DTSC, Regional Board and CUPA. The
OCWD plans, pursued through litigation under the OCWD Act and
other legal theories, creates the distinct possibilities of
inconsistent determinations as to the proper cleanup standards
and what work will actually be conducted. This could lead to
conflicting and inconsistent plans and the possibility of more
contamination remaining in the groundwater for longer periods of
time while the agencies claiming jurisdiction have difference of
opinion."
The OCWD : The OCWD was formed in 1933 by the California State
Legislature enactment of the OCWD Act to protect Orange County's
rights to water in the Santa Ana River. OCWD's primary
responsibility is managing the vast groundwater basin under
northern and central Orange County that supplies water to more
than 20 cities and water agencies, serving more than 2.3 million
Orange County residents.
OCWD primarily recharges the basin with water from the Santa Ana
River and, to a lesser extent, with imported water purchased
from the Metropolitan Water District of Southern California.
OCWD currently holds rights to all Santa Ana River flows
reaching Prado Dam. Water enters the groundwater basin via
settling or percolation ponds in the cities of Anaheim and
Orange. Behind Prado Dam (constructed and owned by the U.S.
Army Corps of Engineers for flood prevention), OCWD owns 2,400
acres in Riverside County, which the district uses for water
conservation, water quality improvement, and environmental
enhancement.
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OCWD monitors the groundwater taken out each year to ensure that
the basin is not overdrawn, refills the basin, and carries out
an assessment program to pay for operating expenses and the cost
of imported replenishment water. The groundwater basin provides
more than half of all water used within the district. OCWD uses
more than 700 wells providing more than 1,400 sampling
points-from which OCWD takes more than 18,000 water samples and
conducts more than 350,000 analyses every year.
In 1989, Section 8 of the Orange County Water District Act was
amended to allow OCWD to recover from parties who contaminate
groundwater the OCWD's costs in remediating contamination.
Groundwater Contamination in Orange County : Key contaminants of
concern for the Orange County Basin include: total dissolved
solids, nitrate, volatile organic compounds (VOCs), perchlorate,
colored water, and N-Nitrosodimethylamine (NDMA). The nitrate
and VOC contaminants are located in shallow aquifers. In many
portions of the groundwater basin, shallow water is prevented
from migrating into deeper aquifers due to aquitards (impervious
formations). Additionally, OCWD has aggressively initiated
programs to address contaminants of concern before they become
larger issues.
North Basin and South Basin Lawsuits and their Current
Dispositions : The OCWD has attempted to recover clean-up costs
from businesses responsible for contamination in both the North
Basin and South Basin area of Orange County. To date, those
attempts to recover site investigation costs have not been
successful.
The OCWD filed a lawsuit in State Superior Court against parties
responsible for contamination in the north part of the Orange
County Groundwater Basin (North Basin area). That lawsuit was
filed after the district became aware of widespread groundwater
contamination in that area that caused three municipal
potable-water production wells to be removed from service and
destroyed (two City of Fullerton wells and one City of Anaheim
well). To date, the judge has not rendered a final ruling.
However, the judge has issued a Statement of Decision and a
Preliminary Ruling that strongly indicates the judge will rule
against the district. When a final ruling is rendered, and if
it is unfavorable as indicated, the district will consider
whether to appeal.
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The OCWD filed a lawsuit in State Superior Court against the
parties responsible for the contamination of the Irvine Ranch
Water District potable-water supply well in the southern portion
of the Orange County Groundwater Basin (South Basin area.) The
State Superior Court judge in the South Basin case has ruled
unfavorably toward the District and not allowed the trial to
proceed. The District is currently appealing that decision.
Argument in support : According to the Orange County Business
Council (OCBC), "OCBC supports holding parties legally
responsible for contamination accountable. However, we do not
support the litigation-driven policies being employed by the
Orange County Water District (OCWD) in order to circumvent
existing procedural and state regulatory processes regarding
waste investigation and clean-up."
Argument in opposition : The OCWA, in opposing AB 2712, states,
"As written, AB 2712 would add several statuses to the
California Health and Safety Code directed solely to OCWD that
would override specific authority that the District has under
the District Act for groundwater cleanup and cost recovery
against those parties causing contamination in Orange County?
AB2712 would add significant delay to contamination and
pollution cleanup efforts. In addition, the bill would single
out OCWD as perhaps the only California water agency that is
prohibited from cleaning up pollution without obtaining approval
from a State agency."
Outstanding Issues :
1)Type of Agency Review . The proposed legislation establishes
state agency oversight for local agency cleanup activities
similar to the process created for brownfield cleanup for
re-development projects. There are significant differences
between these two types of clean-up, one done by local
government acting as the landowner, in the case of
brownfields, and one required by a water agency acting as the
regulatory agency. The brownfield cleanup with associated
liability protections requires significant oversight from the
state, in part due to the interest of the local agency in
charge of the cleanup. The process of state agency approval
included in AB 2712 may be more appropriate if the landowners
were voluntarily cleaning up their property rather than the
mandatory cleanup of contaminated groundwater.
AB 2712
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2)Limits on responsible party liability : AB 2712, as currently
drafted, provides broad liability protections for "any state
or local law imposing liability for cleanup of releases of
hazardous materials" in cases where state agencies have not
approved a cleanup plan. In addition to liability under state
superfund law and the Porter-Cologne Act, the immunity from
liability would include the authority provided in Section 8 of
the OCWD Act, as well as nuisance and common law liability.
3)Failure to add OCWD Act authority to recover costs from
responsible parties : The limits on liability added by AB 2712
are not accompanied by any additional assertion that a
liability exists in those cases where a plan is approved. The
bill is currently silent on the liability of responsible
parties in the event that the OCWD meets their requirements
for agency review and approval. Given the creation of new
provisions in the Health and Safety Code that are unrelated to
the OCWD Act and the authority provided it, it is not clear
how these two acts can be read together.
Prior Legislation:
SB 658 (Correa) 2013 . This bill would reaffirm the liability of
responsible parties for costs actually incurred by the OCWD in
investigating contamination. SB 658 was held on the Senate
Floor.
Double referred . This bill has been double referred to the
Environmental Safety and Toxic Materials Committee and the
Assembly Local Government Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Orange County Business Council (Sponsor)
Los Angeles Area Chamber of Commerce
Opposition
Orange County Water District
Sierra Club California
AB 2712
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Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965