BILL ANALYSIS �
AB 2712
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Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 2712 (Daly) - As Amended: April 24, 2014
SUBJECT : Hazardous materials: Orange County Water District.
SUMMARY : Establishes a process for groundwater cleanup for the
Orange County Water District (OCWD). Specifically, this bill :
1)Makes the following legislative findings:
a) The OCWD adopt a policy that would address the process
for timely groundwater remediation projects that include
clarity and certainty of the process for all interested
parties; and,
b) The OCWD enter into a memorandum of understanding
between the district, the Department of Toxic Substances
Control (DTSC), Regional Water Quality Control Board-Santa
Ana, and the Orange County Health Care Agency to establish
a process of review of the district's proposed groundwater
remediation projects.
2)Provides that in order for OCWD to obtain cost recovery from
responsible parties for the costs of cleaning up, or
containing contamination, or taking other emergency removal or
remedial action, the OCWD is required to:
a) Provide notice of the cleanup plan to the office of the
Regional Water Quality Control Board and the DTSC;
b) Meet and confer with State agencies, and make reasonable
efforts to meet and confer with any responsible party that
is subject to an order or directive of such administering
agency; and,
c) Comply with the requirements for consistency with the
National Oil and Hazardous Substances Pollution Contingency
Plan (NCP) that would apply to the State if it were seeking
to recover costs under the Comprehensive Environmental
Response Compensation and Liability (CERCLA) or the
California Hazardous Substance Account Act.
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EXISTING LAW :
1)The 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; and
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)The federal CERCLA establishes prohibitions and requirements
concerning closed and abandoned hazardous waste sites, and
provides for liability of persons responsible for releases of
hazardous waste at these sites. Among the multiple elements
of CERCLA, two relevant provisions provide:
a) Requires long-term remedial response actions that
permanently and significantly reduce the dangers associated
with releases or threats of releases of hazardous
substances that are serious, but not immediately life
threatening. These actions can be conducted only at sites
listed on EPA's National Priorities List; and
b) Provides for the revision of the NCP. The NCP provided
the guidelines and procedures needed to respond to releases
and threatened releases of hazardous substances,
pollutants, or contaminants.
FISCAL EFFECT : Not known.
COMMENTS :
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Need for the bill : According to the author, "AB 2712 is the
product of compromise between the Orange County Business Council
and the Orange County Water District. This landmark agreement
establishes a positive framework that will enable the district
to discharge its primary responsibility for managing the
groundwater basin under northern and central Orange County while
encouraging a transparent and coordinated process for the clean-
up of contaminated groundwater.
I am optimistic that this bill will foster a new chapter of
cooperation between the water district and the local business
community and protect consumers, ratepayers and businesses from
unnecessary and costly litigation.
The National Contingency Plan process that is now at the heart
of AB 2712 is a time-tested, federal process that seeks to
improve coordination between the responsible governmental
agencies that often participate in an environmental clean-up
project. The NCP offers a template for coordination and
transparency that will more effectively focus the resources
needed to address cleanup concerns while providing the business
community with much needed clarity."
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.
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
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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 for remediating the 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).
North Basin and South Basin lawsuits and their current
dispositions : The OCWD has attempted to recover cleanup 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.
According to the OCWD, the major potential responsible parties
for the groundwater contamination at major industrial sites in
the area include: Northrop, Arnold Engineering, Alcoa, MAG
Aerospace, Crucible Materials, and CBS Broadcasting.
The OCWD filed a lawsuit in State Superior Court against parties
responsible for contamination in the 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.
The OCWD filed a lawsuit in State Superior Court against the
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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.
The NCP process : The NCP defines the organizational structure
and procedures for preparing for and responding to discharges of
oil and releases of hazardous substances, pollutants, and
contaminants. The NCP was developed by the United States
Environmental Protection Agency (US EPA) in response to CERCLA
amendments of 1980, and by section 311(d) of the Clean Water
Act.
The NCP outlines a process for investigating and remediating
federal National Priority List (NPL) Sites (i.e., federal
Superfund Sites). This process has also been adopted by CalEPA
DTSC for State "Superfund" Sites.
The NCP process involves investigating the nature and extent of
contamination (remedial Investigation); conducting a Human
Health Risk Assessment; conducting a Feasibility Study, which
includes developing and evaluating several remedial
alternatives; selecting a proposed remedy; preparing a Proposed
Remedial Action Plan (Proposed Plan); soliciting public and
government agency review and comment on the Proposed Plan; final
remedy selection; and then Remedial Design and Remedial Action
(construction and long-term operation and maintenance).
Prior legislation : SB 658 (Correa) 2013 : This bill would have
reaffirmed 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)
Orange County Water District
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Advanced Medical Technology Association
Anaheim Chamber of Commerce
Association of California Insurance Companies
California Apartment Association
California Building Industry Association
California Business Properties Association
California Business Roundtable
California Chamber of Commerce
California Healthcare Institute
Fresno Area Chamber of Commerce
Fullerton Chamber of Commerce
Huntington Beach Chamber of Commerce
Irvine Chamber of Commerce
Los Angeles Area Chamber of Commerce
Orange County Auto Dealers Association
Orange County Technology Action Network
Los Angeles Area Chamber of Commerce
Sacramento Metropolitan Chamber of Commerce
San Gabriel Valley Economic Partnership
South Orange County Economic Coalition
Opposition
California Groundwater Coalition
Groundwater Resources Association of California
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965