BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2712 (Daly)
As Amended April 23, 2014
Hearing Date: June 24, 2014
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Hazardous Materials: Orange County Water District: Groundwater
Remediation
DESCRIPTION
Existing law, the Orange County Water District Act, establishes
the authority of the Orange County Water District (District) 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.
This bill would require the District, as a precondition to
recovering response costs from a party responsible for
groundwater contamination, to: (1) provide notice of its
contamination remediation action to the relevant regional water
quality control board and the Department of Toxic Substances
Control; (2) meet and confer with agencies and, if feasible, any
responsible party; and (3) comply with the requirements of the
National Oil and Hazardous Substances Pollution Contingency Plan
(commonly called "National Contingency Plan" (NCP)) that apply
to the State pursuant to the Comprehensive Environmental
Response Compensation and Liability (CERCLA) or the
Carpenter-Presley-Tanner Hazardous Substance Account Act.
(This analysis reflects author's amendments to be offered in
Committee.)
BACKGROUND
The Orange County Water District Act (OCWDA) was enacted as an
uncodified measure by SB 1201 (Edwards, Ch. 924, Stats. 1933)
(more)
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and authorized the Orange County Water District (District) to
perform actions necessary to replenish its underground water
basin, or to augment and protect the quality of the common water
supplies in the district. The OCWDA was amended by SB 1335
(Bergeson, Ch. 802, Stats. 1989) to allow the District to
conduct water quality investigations, perform cleaning,
abatement or remedial work as prescribed, and provide a
methodology for recovery of costs from the person causing or
threatening to cause the contamination or pollution.
This bill would proscribe specified notice and meet and confer
requirements as a precondition to the District recovering
response costs from the party responsible for the contamination.
This bill was heard by the Senate Environmental Quality
Committee on June 18, 2014, and passed out on a vote of 7-0.
CHANGES TO EXISTING LAW
Existing law , the Orange County Water District Act (OCWD)
establishes the Orange County Water District (OCWD), consisting
of specified lands in the County of Orange, including the Cities
of Anaheim, Fullerton, and Santa Ana. (Stats. 1933, Ch. 924,
Sec. 1 - Uncod. Acts.)
Existing law authorizes the OCWD 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. (Stats. 1933, Ch. 924, Sec. 2(1) Uncod. Acts.)
Existing law 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.
(Stats. 1933, Ch. 924, Sec.8, as added by Stats. 1989, Ch. 802,
Sec. 4 - Uncod. Acts.)
This bill would require the District to do all of the following
when taking action to cleanup or contain contamination or
pollution abating the effects thereof, or, in the case of
threatened contamination or pollution, taking other necessary
emergency, removal, or remedial actions:
provide notice of the action to the office of the regional
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water quality control board for the region in which the action
shall be taken and the Department of Toxic Substances Control;
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; and
comply with the requirements of the National Contingency Plan
that apply to the State of California pursuant to the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 and with the Carpenter-Presley-Tanner
Hazardous Substance Account Act.
This bill would provide legislative intent language to address
the process for groundwater remediation projects and encourage a
memorandum of understanding to establish a process for review of
the District's proposed groundwater remediation projects.
This bill would also provide findings and declarations related
to the potential conflict and inconsistent regulation of
business and landowners in Orange County that may be responsible
for conducting groundwater investigations and cleanups at their
sites.
COMMENT
1. Stated need for the bill
The author writes:
The Orange County Water District [(District)] recently
proposed comprehensive cleanup plans which overlap, in whole,
or in part, geographically and hydro-geologically, with
cleanups and other activities overseen by the [Department of
Toxic Substances Control (DTSC)], Regional Board and
[Certified Unified Program Agencies (CUPA)]. The [District]
plans create 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.
AB 2712 creates a clear path to actual water cleanup by
requiring the [District to] comply with the National
Contingency Plan regulations. The National Contingency Plan
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("NCP") is a long-standing [United States Environmental
Protection Agency (USEPA)] regulation used by federal, state
and local officials and by environmental professionals
throughout the country as guidance for assessing hazards at
and planning for cleanups of contaminated sites. The NCP
includes guidance for collecting and evaluating data,
assessing hazards to humans and the environment, deciding
whether the hazards posed by a site warrant its cleanup,
evaluating alternative remedies if some cleanup is warranted,
and has provisions for actively seeking community comments
throughout the NCP process. This time-tested process will
bring much-needed certainty to Orange County businesses and
all of those interested in cleaning up our groundwater.
2. Notice and meet and confer requirements
According to the sponsor, the Orange County Business Council,
this bill is a product of compromise between the Orange County
Business Council and the District. The sponsor asserts that
this 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.
Prior to recent amendments, this bill would have created
additional administrative steps to be taken by the District in
order for a person causing or threatening to cause contamination
or pollution to be liable to the District for cleanup,
containment, abatement, or other remedial actions taken
regarding that contamination or pollution. However, now this
bill just requires the District to provide notice to specified
state and federal agencies of those actions taken by the
District. This bill would also require the District to meet and
confer with any administering agency and make reasonable efforts
to meet and confer with any responsible party subject to an
order or directive of the administering agency.
3. Opposition's concerns
This bill is being amended to remove the requirement that the
District take specified actions in order for the contaminating
party to be liable. The Committee received a letter from the
Sierra Club California, who opposed that requirement. It is
unknown if the amendments satisfy the Sierra Club's concerns
with this bill.
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4. Author's amendments
This bill was approved by the Senate Committee on Environmental
Quality on June 18, 2014. Due to procedural timing constraints,
the author agreed in that Committee to take the following
amendments in this Committee.
Author's amendments :
1. On page 4, in lines 36-37, strike ", and the district
takes action in accordance with subdivision (d),"
2. On page 5, strike lines 9-13 and insert "(d) The
district shall do all of the following when cleanup or
containing contamination or pollution abating the effects
thereof, or, in the case of threatened contamination or
pollution, taking other necessary emergency, removal, or
remedial actions:"
3. On page 5, in line 17, after contamination" insert "or
pollution"
4. On page 5, in line 21, strike "for consistency with" and
insert "of"
5. On page 5, in line 22, strike "would"
6. On page 5, in line 23, strike "if it were seeking to
recover costs"
7. On page 5, in line 26, strike "or" and insert "and with"
8. On page 5, in line 27, strike "Substances" and insert
"Substance"
Support : 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; 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
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HISTORY
Source : Orange County Business Council
Related Pending Legislation : None Known
Prior 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.
SB 1335 (Bergeson, Ch. 802, Stats. 1989) See Background.
SB 1201 (Edwards, Ch. 924, Stats. 1933) See Background.
Prior Vote :
Senate Committee on Environmental Quality (Ayes 7, Noes 0)
Assembly Floor (Ayes 73, Noes 1)
Assembly Committee on Appropriations (Ayes 17, Noes 0)
Assembly Committee on Local Government (Ayes 9, Noes 0)
Assembly Environmental Safety and Toxic Materials (Ayes 6, Noes
0)
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