BILL ANALYSIS �
AB 2738
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 2738
AUTHOR: Assembly Committee on Environmental Safety and
Toxic Materials
AMENDED: May 23, 2014
FISCAL: Yes HEARING DATE: June 25, 2014
URGENCY: No CONSULTANT: Rachel Machi
Wagoner
SUBJECT : SAFE DRINKING WATER
SUMMARY :
Existing law :
1)Pursuant to the Safe Drinking Water and Toxic Enforcement Act
of 1986 (Proposition 65), provides for the regulation of
cancer causing chemical and reproductive toxicants,
specifically:
a) Provides that no person in the course of doing business
shall knowingly and intentionally expose any individual to
a chemical known to the state to cause cancer or
reproductive toxicity without first giving clear and
reasonable warning. It also provides that no person shall
knowingly discharge or release those same chemicals into
any source of drinking water.
b) Prohibits any person who serves a notice of alleged
violation from filing an action for exposure against the
alleged violator or recovering from the alleged violator
in a settlement any payment in lieu of penalties or any
reimbursement for costs and attorney's fees, under limited
conditions.
c) Requires, within 14 days after service of the notice,
the alleged violator to demonstrate that they have
corrected the alleged violation and have paid a civil
penalty in the amount of $500.
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2)Pursuant to the state and federal Safe Drinking Water Act
(SDWA):
a) Authorizes, pursuant to the federal SDWA, the United
States Environmental Protection Agency to make funds
available to drinking water systems to finance
infrastructure improvements.
b) Establishes the Safe Drinking Water Small Community
Emergency Grant Fund and authorizes the Department of
Public Health (DPH) to assess an annual charge to
applicants for State Drinking Water State Revolving Fund
(SDWSRF) loans to be deposited in this fund in lieu of
interest that would otherwise be charged on SDWSRF loans.
3)Requires that home water treatment devices meet DPH standards
for those devices offered for sale which claims to reduce
contaminants or makes other health-related performance
claims. Current law allows the manufacturer to provide
third-party certification to DPH of the efficacy of the
device.
This bill contains technical or noncontroversial revisions to
hazardous materials and safe drinking water provisions of the
statutes. Specifically, this bill :
1)Modifies Proposition 65 as follows:
a) Clarifies the provisions of Proposition 65 that require
the noticing party to inform the alleged violator of his
or her right to cure the violation.
b) Specifies that the party alleging a Proposition 65
violation must send the notice of special compliance
informing an alleged violator of the right to correct the
violation, if any of the alleged violations in the 60-day
notice are subject to the right to cure.
2)Modifies the use of funds generated from the fees paid by
applications for loans from SDWSRF as follows:
a) Authorizes the use of the administrative fee charged to
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recipients of SDWSRF loans to reimburse DPH for the costs
of reviewing and approving applications, and the loan
disbursement fee to reimburse DPH for all other costs.
b) Authorizes DPH to annually adjust the fee schedule.
3)Removes duplicate references to the American National
Standards Institute (ANSI) for the DPH Point-of-Use Water
Treatment Device Certification.
COMMENTS :
Need for the bill . This bill provides for a series of
technical, corrective, and non-substantive modifications to the
hazardous materials and drinking water laws. The issues
addressed in this bill were the result of legislation passed in
2013 that include AB 227 (Gatto) related to Proposition 65, AB
21 (Alejo) related to emergency drinking water grants, and AB
119 (Assembly Environmental Safety and Toxic Materials
Committee (ESTM) related to point-of-use water treatment
devices.
Proposition 65, AB 227 (Gatto), Chapter 581, Statutes of 2013 .
AB 227 changed the enforcement provisions of Proposition 65 by
limiting recovery by private citizen enforcement action for
specified types of exposure to chemicals causing cancer or
birth defects or other reproductive harm in those circumstances
when failure to provide clear and reasonable warning has been
remedied and a penalty has been paid.
The technical amendments in this bill were suggested based on
an initial implementation of AB 227 by the California
Department of Justice.
The proposed amendment clarifies that the noticing party must
immediately inform the alleged violator of the right to cure
the violation, and not wait until after sending the 60-day
notice. The second amendment to Proposition 65 makes it clear
that the noticing party must send the notice of special
compliance informing an alleged violator of the right to cure
if any of the alleged violations in the 60-day notice are the
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specific types of exposures subject to AB 227. Leaving the
current statutory language in place creates a potential
unintended loophole by letting the noticing party allege at
least one violation that is not subject to AB 227 to avoid the
entire process.
Safe Drinking Water Small Community Emergency Grant Fund, AB 21
(Alejo), Chapter 628, Statutes of 2013 .
AB 21 established the Safe Drinking Water Small Community
Emergency Grant Fund which is financed from a fee charged to
loan recipients in lieu of a similar amount of interest. The
fees collected are provided to disadvantaged communities in the
form of grants to improve drinking water safety. AB 2738
provides that fees collected may be used for prescribed
administrative costs of providing assistance under these
provisions, to the extent consistent with federal law.
It is unclear how this amendment to the statute would be
integrated with the statutory changes made in the budget
trailer bill to transfer the drinking water program from DPH to
the State Water Resources Control Board (SWRCB). Because this
bill will be enacted after the trailer bill, it may
inadvertently make changes to the Fund that SWRCB is attempting
to integrate into the overall restructuring of the Drinking
Water Program. It may make sense to make this change to the
Fund next year after the reorganization of the Drinking Water
Program is complete.
An amendment is needed to strike this provision from the bill.
Certification of Water Treatment Devices, AB 119 (ESTM),
Chapter 403, Statutes of 2013 .
AB 119 provided that a device may be sold, provided it meets
the ANSI standard or it had previously been approved by the
DPH. The requirements of Health and Safety Code Section 116845
include the ANSI standards as well as alternative requirements
for previously approved devices.
The current inclusion of the ANSI requirement in addition to
the posting on the DPH web page duplicates the requirements
that must be met in order to be placed on the DPH website. The
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provisions of AB 2738 make it clear that previously approved
devices would be allowed to remain on the DPH website and
therefore be authorized for sale in California.
SOURCE : Author
SUPPORT : None on File
OPPOSITION : None on File