Murky Drinking Water Legislation

By Loretta Macktal, Executive Assistant to the Vice President, Government Relations

Capitol Update, June 13, 2003 Share this on FacebookTweet thisEmail this to a friend

SB 922 (Nell Soto, D-Pomona) stems from groundwater contamination in Rialto and Colton in Eastern San Diego County where the presence of the chemical perchlorate – used in rocket propulsion systems, flares, fireworks and other combustion applications – has forced the shutdown of some municipal drinking water wells. However, SB 922 is not limited just to perchlorate contamination. The bill grants broad new authority to the state and regional water boards to require any discharger responsible for contaminating groundwater that may be used for drinking water to provide affected groundwater suppliers with replacement drinking water.

SB 922 is silent on several issues that are critical to determining a dischargers’ replacement water obligations. The regional boards would have unilateral authority to determine which drinking water suppliers are entitled to replacement water, how much they should get, who should provide it and which potentially responsible parties (PRPs) should pay. At present, these issues are either settled voluntarily between water suppliers and PRPs or by the courts, where decades of case law and civil procedure provide a framework for establishing replacement water requirements. Existing law also provides affirmative defenses to PRPs that would not be available under an administrative order. These rights and procedures are particularly important in complex cases such as Rialto, where there are nearly 30 PRPs.

The author and sponsors claim that SB 922 is intended to expedite the process for securing replacement drinking water supplies. CMTA believes it would have precisely the opposite affect. In order to protect their rights and limit their liability, it is likely that most PRPs would immediately appeal any cleanup orders dictating replacement water conditions. These cases would ultimately wind up in court, where the above noted issues would be resolved. This circuitous process would further delay the remedy to the water supplier.

SB 922 is one of four bills proposing different remedies for water suppliers affected by groundwater contamination. The others, SB 543 (Mike Machado, D-Linden), AB 1020 (John Laird, D-Santa Cruz) and AB 1004 (Hannah-Beth Jackson, D-Santa Barbara), would similarly result in a more convoluted and litigious process, thereby failing to address the needs of affected water suppliers.

CMTA encourages the authors and sponsors of these measures to consider a process developed in AB 2646 (Calderon, 2000) to address the same basic problem at issue in the proposed legislation. This process requires that the regional board identify all responsible parties (RPs) and impacted water suppliers. All RPs must participate in the remedy. Any disputes between the water supplier and the RP would be subject to immediate binding arbitration. In addition, the process is subject to time constraints.

The AB 2646 process offers balanced and effective drinking water policy – it would expedite replacement drinking water remedies to affected suppliers while still protecting the rights of PRPs.
Read more Environmental Impacts articles

Capitol updates archive 989898989