BILL ANALYSIS �
AB 2712
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 2712
AUTHOR: Daly
AMENDED: April 23, 2014
FISCAL: Yes HEARING DATE: June 18, 2014
URGENCY: No CONSULTANT: Rachel Machi
Wagoner
SUBJECT : HAZARDOUS MATERIALS: ORANGE COUNTY WATER DISTRICT:
GROUNDWATER REMEDIATION
Existing law , under the Orange County Water District Act (OCWD
Act):
1)Establishes the OCWD, consisting of specified lands in the
County of Orange, including the Cities of Anaheim, Fullerton,
and Santa Ana.
2)Authorizes the district to investigate the quality of the
surface and groundwaters 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 groundwaters
of the district.
3)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.
This bill establishes a process for groundwater cleanup for the
OCWD. Specifically, this bill :
1)Makes the following legislative findings:
a) The OCWD shall adopt a policy that would address the
process for timely groundwater remediation projects that
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include clarity and certainty of the process for all
interested parties; and,
b) The OCWD shall enter into a memorandum of understanding
between the district, the Department of Toxic Substances
Control (DTSC), the Santa Ana Regional Water Quality
Control Board, and the Orange County Health Care Agency to
establish a process of review for 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.
COMMENTS :
1) Purpose of 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
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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."
2) The Orange County Water District (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 of imported replenishment water. The
groundwater basin holds millions of acre-feet of water (an
acre-foot satisfies the needs of two families for one year).
The groundwater basin provides more than half of all water
used within the District. Protection, safety and enhancement
of groundwater are OCWD's highest priorities. With one of
the most sophisticated groundwater protection programs in the
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country, 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. OCWD's monitoring program looks for more than 330
constituents-far more than the 122 required by the regulatory
agencies.
In 1989, Section 8 of the OCWD Act was amended to allow OCWD
to recover from parties, who contaminate groundwater, the
OCWD's costs in remediating contamination.
3) 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).
4) 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
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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
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.
5) 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).
6) Additional Burdens on the Cleanup Agency - Are the additional
requirements added to the law by this bill in the public's
best interest ? Last year the Senate Environmental Quality
Committee heard SB 658 (Correa), which would have clarified
the liability of responsible parties for investigatory costs
actually incurred by the OCWD in remediating contamination.
In that hearing, the Senate Environmental Quality Committee
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heard testimony from OCWD that in attempting to recover
cleanup costs from responsible parties who contaminated the
water basin that litigation was filed against OCWD on the
basis that investigatory costs were not statutorily allowed
under cost recover. AB 658 clarified that by explicitly
including investigation as a recoverable cost in the law.
The opposition further asserted in that hearing that they
were not liable for costs related to the investigation of the
cleanup, not because they did not cause or contribute or were
otherwise responsible for the contamination, but rather
because of the overlapping efforts of OCWD with other cleanup
agencies such as DTSC and the regional board.
It appears that AB 2712 aims to increase communication
between OCWD and other remediation oversight agencies by
requiring 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.
However, the bill also creates additional responsibilities
for the OCWD prior to seeking recovery of costs from a
responsible party.
In order for a responsible party to be held accountable for
the damage they have done, OCWD would have to provide notice
of the cleanup plan to the office of the Regional Water
Quality Control Board and the DTSC; 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, comply with
the requirements for consistency with the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP) -
meaning 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).
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If this bill were to be enacted, if OCWD failed to do any of
these things then the responsible party appears to no longer
be responsible for any of the costs incurred for the cleanup.
What is the justification for these costly and time
consuming requirements? Does this potentially make it more
difficult for OCWD to recover legitimate costs associated
with a cleanup? Is it in the public's best interest to slow
down the cleanup of groundwater? Does this increase the
likelihood of litigation over how OCWD conducted the
pre-cleanup activities?
An amendment is needed to strike the language that makes the
recovery costs contingent on meeting these requirements.
7) Arguments in Support . The support argues that this
legislation is needed to ensure that scarce resources
intended for cleaning up contaminated water supplies do not
end up being wasted on needless litigation.
8) Arguments in Opposition . The opposition argues that the
requirements of the bill add multiple layers of unnecessary
bureaucracy and oversight that will likely delay or stop
needed cleanup activities.
9) Previous Legislation . SB 658 (Correa, 2013) would have
required the person also to be liable for the costs actually
incurred in investigating the contamination or pollution. The
bill would provide that these remedies are in addition to all
other legal and equitable remedies available to the water
district, including declaratory relief. SB 658 was held on
the Senate Floor.
10)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 : Orange County Business Council
SUPPORT : Advanced Medical Technology Association
Anaheim Chamber of Commerce
Association of California Insurance Companies
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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
Orange County Water District
Personal Care Products Council
Sacramento Metropolitan Chamber of Commerce
San Gabriel Valley Economic Partnership
South Orange County Economic Coalition
OPPOSITION : Sierra Club California