Major California Legislation Enacted in 1997 Relating to Water Quality

WATER QUALITY

MTBE Issues

S.B. 521 (Mountjoy), S.B. 1189 (Hayden)

and A.B. 592 (Kuehl)

(Chapters 816, 815 and 814, respectively)

Methyl tertiary-butyl ether, or MTBE, is the most commonly used oxygenate to comply with California's Cleaner Burning Gasoline regulations. However, MTBE is highly mobile in soil and can migrate to groundwater--MTBE contamination caused the City of Santa Monica to shut down two well fields in 1996 and it has been found in shallow groundwater at more than half the leaking underground storage tank sites overseen by the Santa Clara Valley Water District. Amid public controversy over MTBE, three bills addressing the impact of the oxygenate were enacted during 1997.

S.B. 521--MTBE Public Health and Environmental Protection Act of 1997

The purpose of this legislation is to provide the public and the Legislature with a thorough and objective evaluation of the human health risks and benefits, if any, of the use of MTBE as compared to ethyl tertiary-butyl ether (ETBE), tertiary amyl methyl ether (TAME) and ethanol in gasoline, and to ensure that the air, water and soil impacts associated with the use of MTBE are fully mitigated. Ch. 816, § 2.

To that end, the Act appropriates $500,000 from the Motor Vehicle Fuel Account to the University of California to study the human health and environmental risks and benefits associated with the use of MTBE as compared to ETBE, TAME and ethanol. Ch. 816, § 3(a). The study must include, among other things:

• An assessment of the risks associated with leaking tanks, water craft, and other sources of MTBE pollution;

• An analysis of current levels of MTBE in the State's drinking water and surface waters;

• An assessment of the corrosive effects of MTBE on fiberglass tanks;

• A comparison of the incidence of asthma before and after the level of MTBE was increased in California gasoline;

• An evaluation of the scientific peer-reviewed research and literature on MTBE's health and environmental effects, as well as original research as necessary;

• Identification and quantification of the combustion byproducts of MTBE in California's Cleaner Burning Gasoline;

• An evaluation of the impact of MTBE on vehicle parts and efficient operation of vehicles; and

• An evaluation of the costs and effectiveness of treatment technologies for remediating MTBE contamination. Ch. 816, § 3(c).

The University of California is required to submit a draft report to the Governor by January 1, 1999. The Governor must transmit the report to the U.S. Geological Survey and to the Agency for Toxic Substances and Disease Registry at the Centers for Disease Control for comment, and must hold two public hearings. Within 10 days after completion of the public hearings, the Governor must issue a written certification as to the human health and environmental risks of using MTBE in California. The certification must state either that there is no significant risk, or that significant risk exists. If the Governor certifies that significant risks exist, the Governor must take "appropriate" action to protect public health and the environment. Ch. 817, § 3(d)-(f).

In addition to the foregoing, the Act amends the Barry Keene Underground Storage Tank Cleanup Trust Fund Act to prohibit the issuance of a site closure letter until that site has been tested for MTBE and the results of the tests are known to the regional board. Health & Safety Code § 25299.37.1.

The Act requires that any discharge involving MTBE from a storage tank, pipeline or other container be cleaned up if it poses a threat to drinking water, to potential drinking water sources or to coastal waters. Water Code § 13285(a). The Act protects public water systems from liability for remediation or treatment costs associated with MTBE. However, public water systems may incur costs as necessary to comply with any drinking water standards for MTBE and may seek recovery of those costs from responsible parties. Health & Safety Code § 116366(a); Water Code § 13285(b).

S.B. 1189 and A.B. 592--Addressing contamination from USTs and pipelines

Senate Bill 1189 and Assembly Bill 592 are virtually identical in many respects, each adding the same three articles to the Health and Safety Code. Collectively, they establish a comprehensive program for the prevention and remediation of contamination of public drinking water systems caused by MTBE. The requirements imposed by the Acts address four general areas:

• Establishing a Geographic Information System (GIS)-based mapping system designed to provide maximum information on the proximity of underground storage tanks and pipelines holding oxygenated fuel to public drinking water supply wells;

• Mandating that all persons operating a UST or pipeline containing oxygenated fuels located within 1,000 feet of a public drinking water well file and implement a public water supply wellhead protection plan;

• Authorizing the State Water Resources Control Board to spend up to $5 million annually for treatment of public water systems impacted by gasoline oxygenates from USTs; and

• Requiring adoption of regulations for the uniform sampling and testing of oxygenates, and setting a specific timetable for issuing primary and secondary drinking water standards for MTBE.

GIS Mapping and Data Management Advisory Committee. The Acts require the State Board to establish a GIS Mapping and Data Management Advisory Committee to advise the Board on expanding the GIS database to provide appropriate information that will enable agencies to better protect public drinking water wells (and, if feasible, nearby aquifers that are reasonably expected to be used as drinking water) from contamination by motor vehicle fuel from USTs and hazardous liquid pipelines. Health & Safety Code § 25299.97(c)(1). The Advisory Committee must include, at a minimum, members from:

• Appropriate state and local agencies;

• Affected industry and business;

• Water agencies that provide drinking water in Santa Monica and in the Santa Clara Valley;

• Nonprofit environmental groups dedicated to the conservation and preservation of natural resources; and

• Underground storage tank owners. Health & Safety Code § 25299.97(c)(2).

In consultation with the Advisory Committee, the State Board must coordinate with:

• The Department of Water Resources and the Department of Health Services: to obtain the location of existing drinking water wells and appropriate water resource and quality data;

• Local agencies authorized to oversee UST compliance: to obtain the location of all USTs that store motor vehicle fuel and that are within 1,000 feet of a public drinking water well, and the location of all known releases of motor vehicle fuel from USTs within 1,000 feet of a drinking water well; and

• The State Fire Marshal: to add the location and leak history of all pipelines or pipeline segments that transport motor vehicle fuel and are within 1,000 feet of an existing public drinking water well. Health & Safety Code § 25299.97(e).

Pilot projects. The Acts also create a pair of pilot projects, the Santa Monica Groundwater Pilot Project and the Santa Clara Valley Groundwater Pilot Project, to define and assess the parameters of the data base, identify data needs, develop electronic linking and data submittal opportunities, offer Internet access to the public, streamline existing processes and work out the details for data management and a GIS mapping system. Health & Safety Code § 25299.97(d).

Wellhead protection plans for pipelines. Assembly Bill 592 directs the State Fire Marshal to adopt regulations for wellhead protection plans that provide guidelines to be used by the pipeline operator to protect public drinking water wells from contamination, should a pipeline rupture or leak. Gov't Code § 51017.2(a). At least biennially, using the GIS data base, the State Fire Marshal must identify each pipeline or pipeline segment transporting petroleum product that is within 1,000 feet of a public drinking water well and must notify the pipeline operator. Gov't Code § 51017.1(a), (b). The operator of a pipeline notified of its proximity to a drinking water well must submit a wellhead protection plan to the State Fire Marshal within 180 days of the later of the date of receiving the notification or the adoption of the wellhead protection plan regulations. Gov't Code § 51017.1(c).

At a minimum, the wellhead protection plan must contain:

• Operational activities that provide sufficient information to ensure the integrity of the pipeline (and may include inspection by smart pigs, potholing, well monitoring, additional or more frequent pressure tests, cathodic protection surveys or visual inspections); and

• Response measures designed to enhance the operator's response to an emergency such as a pipeline rupture, fire, earthquake or flood. Gov't Code § 51017.2(a).

The pipeline operator must implement the wellhead protection plan within 180 days of receiving approval from the State Fire Marshal and must evaluate the plan at least once every five years to ensure compliance with current regulations. The operator must notify the State Fire Marshal that no changes are warranted or must submit a new plan, as appropriate. Gov't Code § 51017.1(c), (e).

A pipeline operator may petition the State Fire Marshal for an exemption from the wellhead protection plan
requirement for pipelines that do not transport motor vehicle fuel, or that do not pose a significant threat to public drinking water wells based upon the following criteria:

• Pipeline parameters, such as operation pressure, operating temperature, age, design, fabrication materials, construction, corrosivity of the soil, cathodic protection and the feasibility of smart pigs;

• Hydrogeologic parameters, such as soil permeability, direction and velocity of groundwater flow, aquifer location or depth, and hydrogeologic barriers or conduits;

• Water well parameters, such as the depth of well and well construction;

• The nature of the fuel transported and its ability to migrate to public drinking water wells; and

• The impact of human activity that may elevate or reduce the risk to the drinking water well. Gov't Code § 51017.1(f).

Funding and cost recovery. Both Acts authorize the State Water Resources Control Board to spend up to $5 million annually from the Underground Storage Tank Cleanup Fund to assist public water systems in which public drinking water wells have been contaminated by an oxygenate. The Board may spend up to $1 million per affected drinking water supply source. Health & Safety Code § 25299.99(a).

Public water systems that receive State Board funds must aggressively pursue cost recovery from responsible persons, and must repay any funds received within five years from the earlier of the date of initial payment or the date of any cost recovery. Repayment is not required if the public water system can show the State Board that recovery from a responsible party is not possible despite all reasonable efforts or that a responsible party cannot be identified. Health & Safety Code § 25299.99(c).

Testing regulations and drinking water standards. Assembly Bill 592 requires DHS, in consultation with the State Board and representatives from operators of public water systems, to establish emergency regulations for uniform, scientific sampling and analytical testing protocols for oxygenates. Health & Safety Code § 16375(j). In addition, both Acts require DHS to establish a primary drinking water standard for MTBE by July 1, 1999, and a secondary drinking water standard for MTBE by July 1, 1998. The Proposition 65 Scientific Advisory Panel must make a recommendation to the Office of Environmental Health Hazard Assessment by January 1, 1999, on whether MTBE should be listed as a carcinogen or a reproductive toxin. Health & Safety Code §§ 116610, 116612.

List of MTBE discharges. Finally, both Acts require each regional water quality control board to publish and distribute, to all public water system operators within the region on a quarterly basis, a list of discharges of MTBE during the quarter and a list of locations where MTBE was detected in the groundwater within the region. Water Code § 13272.1.

Penalties for Unpermitted Discharges to State Waters

A.B. 11 (Escutia) (Chapter 766)

Assembly Bill 11, an urgency measure effective October 8, 1997, seeks to tighten the laws for enforcement of water pollution violations.

Under Fish and Game Code section 5650(c), it is an affirmative defense to a violation if the defendant proves that he complied with all applicable spill reporting requirements; the spilled material did not enter the waters of the State (or a storm drain that discharges to waters of the State); and the discharger made timely and reasonable efforts to mitigate the efforts of the release. The Act disallows this affirmative defense in any case where the violation is found to be willful, or where the defendant has on two prior occasions within the past five years been convicted of violating section 5650. In addition, the Act narrows the scope of the exemption from the discharge prohibition to only those releases that are expressly authorized by and in compliance with the terms and conditions of a state waste discharge permit or waiver or a federal NPDES permit. Fish & Game Code § 5650(e), (f).

The Act amends legislation enacted in 1996 (S.B. 649) which was perceived as allowing willful and repeat violators to avoid prosecution by claiming that they (1) had obtained a waiver from a State Board or regional board staff member, or (2) had taken steps to mitigate the release, even where the release resulted from willful or negligent actions. Fish & Game Code § 5650(b).

Underground Storage Tanks--Compliance Certification

A.B. 1491 (Cunneen) (Chapter 808)

Under existing law, underground storage tanks installed after January 1, 1984 must meet standards for new USTs and tanks installed on or prior to that date must meet upgrade and retrofit requirements by December 22, 1998. Prior law allowed permits for USTs to include a schedule of compliance to allow a reasonable opportunity to comply with the UST law and regulations. Former Health & Safety Code § 25284(d). Assembly Bill 1491 removes that provision and instead makes it unlawful, beginning January 1, 1999, to place petroleum in an underground storage tank unless the tank meets the state UST requirements. Health & Safety Code § 25292.3(a). In addition, the Act requires that:

• Once a tank meets the applicable statutory and regulatory standards, the owner or operator will receive an upgrade compliance certification as part of the tank permit. The certificate must be displayed in a conspicuous location. Health & Safety Code § 25284(e).

• By December 22, 1998, the State Board must notify persons who deliver petroleum to underground storage tanks where they can obtain a list of tank facilities that have been issued an upgrade compliance certificate. Local agencies must maintain a list and make it available on request. Health & Safety Code § 25284(f).

Before filling a tank with petroleum, a person must: (1) obtain written verification from the local agency that the tank is on a list of upgraded tanks; or (2) obtain a copy of the upgrade compliance certification from the owner or operator; or (3) observe a posted upgrade compliance certificate. Health & Safety Code § 25292.3(b).

Discharges of Recycled Water

A.B. 541 (Ducheny) (Chapter 833)

Assembly Bill 541 excludes recycled water from the definition of "sewage" for purposes of reporting unauthorized discharges under section 13271 of the Water Code. Water Code § 13271(f). The Act also establishes new notification and penalty provisions applicable to recycled wastewater. The reporting obligations are triggered by unauthorized discharges of 50,000 gallons or more of highly treated recycled water, or 1,000 gallons or more of minimally treated recycled water. Water Code § 13529.2(a). Failure to notify is punishable by administrative civil penalties ranging from $5,000 to $25,000, depending on whether it is a first, second, third or subsequent violation. Water Code § 13529.4(a).

Management of Contaminated Sediments

S.B. 673 (Karnette) (Chapter 897)

Senate Bill 673 establishes a multiagency Los Angeles Basin Contaminated Sediments Task Force to assist the California Coastal Commission in developing a long-term management plan for the dredging and disposal of contaminated sediments in the coastal waters offshore the County of Los Angeles. Water Code § 13396.9(a), (b). The current lack of a management plan is viewed as a barrier to the dredging of Marina del Rey, the Los
Angeles River estuary and the Ports of Long Beach and Los Angeles.

The Coastal Commission and the Los Angeles Regional Water Quality Control Board are to establish and participate in the Task Force in cooperation with EPA, the Army Corps of Engineers, the Ports of Long Beach and Los Angeles, and other interested parties. Water Code § 13396.9(a).

Safe Drinking Water State Revolving Fund Law of 1997

S.B. 1307 (Costa) (Chapter 734)

Senate Bill 1307, an urgency measure effective October 7, 1997, makes changes to the California Safe Drinking Water Act to conform state law to the federal Safe Drinking Water Act Amendments of 1996. Under federal law, states adopting drinking water protections at least as stringent as the federal protections have primary responsibility to enforce the federal act, and are eligible for federal grants to administer the program. Senate Bill 1307 conforms California's program to new federal requirements, allowing the State to retain primary enforcement responsibility and federal administration funding. The Act also adds Chapter 4.5 (commencing with section 116760) to the Health and Safety Code, which creates a state revolving fund, enabling California to take advantage of federal capitalization grants for state revolving funds that finance public water system upgrades. To receive federal grants, the State must contribute matching funds to the revolving fund.

State revolving fund

The Act establishes a new state revolving fund, administered by DHS, to provide low interest loans and grants to public water systems. Financed by federal contributions and state matching funds, the revolving fund will make loans and grants available for planning and preliminary engineering studies as well as for project design and construction. Loans, available to private and public entities, must be repaid within the useful life of the project or within 20 years, whichever is less. Public agencies unable to repay the full cost of a loan may apply for grants or a combination of loans and grants. Between 15 and 30% of moneys in the fund are allocated to grants to public water systems serving disadvantaged communities and at least 15% to loans and grants to small systems serving fewer than 10,000 persons. Health & Safety Code §§ 116760.30, 116760.40, 116761, 116761.22, 116761.20, 116761.21 and 116761.24.

Groundwater protection program

The Act directs the State Water Resources Control Board to develop and implement a groundwater protection program, as required by the federal act. The State Board is authorized to obtain groundwater protection grants from the federal government and to conform the groundwater protection program to any requirements of federal law. Water Code § 13169.

Lead free pipes, fixtures and solder

Prior law prohibited the use of lead pipe, and the use of solder containing more than 0.2% lead, in public water systems and plumbing. The Act, with certain exceptions for industrial uses, prohibits the sale of pipes, pipe and plumbing fittings and fixtures, solder and flux which are not "lead free," defined as containing less than between 0.2% and 8% lead, depending on the product. In addition, lead free plumbing products must be used when installing new public water systems or plumbing which conveys water for human consumption, or repairing existing systems or plumbing except where necessary for the repair of joints of cast iron pipes. Health & Safety Code § 116875.

Exclusions and exemptions

Prior law excluded several categories of water suppliers from regulation as public water systems. The Act narrows some of these exclusions, requiring water not primarily intended for human consumption to meet drinking water standards.

• The Act terminates exemptions for irrigation canal systems and primarily agricultural water service as of August 6, 1998. Health & Safety Code § 116290.

• The Act allows irrigation, reclamation and drainage districts providing primarily agricultural services through a piped water system to be excluded from drinking water regulations, but only if DHS finds that alternative water sources are provided for any incidental residential uses or that the water is centrally treated to achieve protection equivalent to that under the primary drinking water regulations. Health & Safety Code § 116286.

• Under prior law, connections conveying water to customers other than through a pipe (e.g., through a canal) were excluded from the scope of public water systems. The Act allows the exclusion of non-pipe conveyances, but only if the water is not used for residential purposes, alternative water sources are provided, or the water is centrally treated to achieve protection equivalent to that under the primary drinking water regulations. Health & Safety Code § 116275(s).

Existing law authorizes DHS to exempt public water systems from any maximum contaminant level or treatment technique requirement under certain circumstances. The Act establishes additional situations in which DHS may grant an exemption:

• When the service area of the public water system is a disadvantaged community.

• If the system is reasonably likely to be brought into compliance through a planned transfer of ownership or by consolidating with another system. This exemption, which is available for up to two years, is intended to encourage the merger of smaller public water systems (which the Legislature believes are more likely to have difficulty correcting contamination problems) into larger systems. Health & Safety Code § 116425(a)(2) and (h)(1)-(3).

Other Legislation of Interest--Coastal Monitoring and Storm Water

Assembly Bill 1429 (Ch. 899) requires the State Water Board to establish a Coastal Water Ambient Water Quality Monitoring Program in order to undertake an inventory of existing water quality monitoring efforts and use that information to develop a comprehensive monitoring system for coastal watersheds, streams, bays, estuaries and coastal waters. The Board must submit a report to the Legislature by January 1, 2001 that proposes a comprehensive program for monitoring these waters for pollutants, including bacteria and viruses, petroleum hydrocarbons, heavy metals and pesticides. The monitoring system must identify the relative contribution of contaminants in storm water to the overall anthropogenic discharges into near coastal waters and, to the extent possible, the effectiveness of best management practices in reducing the contaminant discharges.

Assembly Bill 1186 (Ch. 775), introduced to remedy a perceived lack of storm water discharge enforcement, earmarks at least 50% of the fees collected from NPDES storm water dischargers for regional water boards to carry out the storm water programs in the region where the fees were generated. Boards receiving these funds must spend at least 50% of the amount received on storm water inspection and regulatory compliance issues associated with industrial and construction storm water programs.