BILL ANALYSIS �
AB 2712
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Date of Hearing: April 30, 2014
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 2712 (Daly) - As Amended: April 23, 2014
SUBJECT : Hazardous materials: Orange County Water District:
groundwater remediation.
SUMMARY : Requires the Orange County Water District (District)
to provide notice and meet and confer with specified agencies
and responsible parties, prior to filing an action to recover
the costs of cleaning up or containing contamination, and
requires the District to comply with the requirements of the
National Contingency Plan (NCP). Specifically, this bill :
1)Adds a new section to the Orange County Water District Act
(Act) to allow 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.
2)Allows 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.
3)Allows the action in 2), above, to be taken in default of, or
in addition to, remedial work by the person causing the
contamination or pollution, or other persons, and allows the
District to perform the work itself, by contract, or by or in
cooperation with any other governmental agency.
4)Requires the District, in order to obtain, by legal action or
proceeding, the recovery of the costs of cleaning up or
containing contamination, abating the effects of the
contamination or pollution, or taking other emergency,
removal, or remedial action pursuant to 5), below, to do all
of the following:
a) Provide notice of the action to the office of the
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regional water quality control board for the region in
which the action shall be taken and the Department of Toxic
Substances Control (DTSC);
b) With respect to the contamination, 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 of directive of the
administering agency; and,
c) Comply with the requirements for consistency with the
NCP that would apply to the State of California if it were
seeking to recover costs pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (CERCLA) or the Carpenter-Presley-Tanner Hazardous
Substances Account Act.
5)Requires, if pursuant to 2), above, the contamination or
pollution is cleaned up or contained, the effects thereof
abated, or, in the case of threatened contamination or
pollution, other necessary emergency, removal, or remedial
action is taken, and the District takes action in accordance
with 4), above, 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.
6)Provides that 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, and provides
that 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.
7)Declares the intent of the Legislature that the 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;
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b) To provide for the swift remediation of groundwater
contamination; and,
c) To uphold the responsibilities of the District.
8)Declares the intent of the Legislature that the District enter
into a memorandum of understanding (MOU) between the District,
the Department of Toxic Substances Control (DTSC), the
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.
9)Finds and declares that a special law is necessary and that a
general law cannot be made applicable because DTSC, the
California Regional Water Quality Control Board, 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 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 conduction of groundwater investigations and
cleanups at their sites.
10)Requires, if the Commission on State Mandates determines that
this Act contains costs mandated by the state, that
reimbursement to local agencies and school districts for those
costs shall be made, as specified.
EXISTING LAW :
1)Creates the District and prescribes its powers and duties and
boundaries, consisting of specified lands in the County of
Orange, including the Cities of Anaheim, Fullerton, and Santa
Ana.
2)Authorizes the District to perform actions useful or necessary
to replenish the underground water basin with the District, or
to augment and protect the quality of the common water
supplies of the District.
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3)Authorizes the District 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.
4)Requires the person causing or threatening to cause the
contamination or pollution to be liable to the District 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.
5)Establishes DTSC to regulate hazardous waste, cleans-up
existing contamination, and looks for ways to reduce the
hazardous waste produced in California.
6)Establishes, under the federal CERCLA, 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 : This bill is keyed fiscal.
COMMENTS :
1)Background on the District . The District was formed in 1933
by the California State Legislature enactment of the Act to
protect Orange County's rights to water in the Santa Ana
River. The District's primary responsibility is managing the
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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.
The District 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. The District 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), the District
owns 2,400 acres in Riverside County, which the district uses
for water conservation, water quality improvement, and
environmental enhancement.
The District 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. The District uses more than 700 wells
providing more than 1,400 sampling points-from which the
District takes more than 18,000 water samples and conducts
more than 350,000 analyses every year.
In 1989, Section 8 of the District's Act was amended to allow
the District to recover from parties who contaminate
groundwater the District's costs in remediating contamination.
2)Purpose of this bill . This bill requires the District, in
order to obtain, by legal action or proceeding, the recovery
of the costs of cleaning up or containing contamination,
abating the effects of the contamination or pollution, or
taking other emergency, removal, or remedial action, to
provide notice of the action to a regional water quality
control board and the DTSC, to meet and confer with agencies
and any responsible party, and to comply with the requirements
for consistency with the NCP.
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Additionally, the bill states the intent of the Legislature
that the District adopt a policy to address the process for
groundwater remediation projects and that the District shall
enter into a MOU between it, the DTSC, 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 is sponsored by the Orange County Business Council.
3)Ongoing litigation . The District 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.
The District 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.
4)NCP . 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.
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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).
5)Author's statement . 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 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."
6)Arguments in support . Supporters argue that this bill is
needed to ensure that scarce resources are expended on
cleaning up contaminated water and not costly litigation.
7)Arguments in opposition . None on file.
8)Double-referral . This bill is double-referred to the
Committees on Environmental Safety and Toxic Materials and
will be heard in that Committee on April 29, 2014.
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REGISTERED SUPPORT / OPPOSITION :
Support
Orange County Business Council [SPONSOR]
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 Business Council
Orange County Technology Action Network
Personal Care Products Council
Sacramento Metropolitan Chamber of Commerce
San Gabriel Valley Economic Partnership
South Orange County Economic Coalition
Opposition
None on file
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958
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