BILL ANALYSIS Ó AB 2022 Page 1 Date of Hearing: March 29, 2016 ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS Luis Alejo, Chair AB 2022 (Gordon) - As Amended March 28, 2016 SUBJECT: Advanced purified demonstration water SUMMARY: Authorizes the bottling of advanced purified demonstration water, as defined, for educational purposes and to promote water recycling. Specifically, this bill: 1)Defines "advanced purified demonstration water" (APDW) as product water from an advanced water purification facility that satisfies both of the following requirements: a) The product water is treated by means of all of the following treatment processes: i) Microfiltration, ultrafiltration, or other filtration processes to remove particulates before reverse osmosis; ii) Reverse osmosis; iii) Advanced oxidation; and, b) The product water meets or exceeds all federal and state drinking water standards and is produced in accordance with the advanced treatment criteria for purified water AB 2022 Page 2 specified in Section 60320.201 of Title 22 of the California Code of Regulations (CCR). 2)Defines "advanced water purification facility" as a water recycling treatment plant that produces APDW in accordance with CCR Section 60320.201. 3)Defines "batch" as an increment of advanced purified treatment water that has completed the treatment process, is separate from incoming water, and is not receiving any additional water. 4)Authorizes the operator of an advanced water purification facility to cause that water to be bottled and distributed as samples for educational purposes and to promote water recycling. 5)Exempts, from existing water bottling statute, the operator of an advanced water purification facility who is causing that water to be bottled and distributed as samples for educational purposes and to promote water recycling. 6)Requires any operator of an advanced water purification facility seeking to bottle APDW to collect water samples from the batch prior to the commencement of the bottling process, and to have that batch tested by a certified laboratory. 7)Prohibits the distribution of APDW unless the following requirements are met: a) The water meets or exceeds all federal and state drinking water standards and goals, including all maximum contaminant levels applicable to public drinking water systems; b) All water purification requirements imposed by regulatory agencies on the advanced water purification facility used to produce APDW, including the removal of AB 2022 Page 3 constituents of emerging concern where the removal is otherwise required of an advanced water purification facility by the State Water Board; and, c) The water is produced using a treatment process that is consistent with the advanced treatment criteria for purified water specified in CCR Section 60320.201 and, if established by the State Water Board, in accordance with any uniform statewide water recycling treatment criteria developed for the direct consumption of ADPW. 8)Requires APDW to be bottled at a licensed water-bottling plant that is in compliance with specified provisions of water bottling statute, including some labeling, licensing, and testing provisions. 9)Requires an advanced water purification facility, before bottling APDW, to follow all pretreatment and labeling regulations for water bottling, including the statutory requirements for bottled water and vended water. 10)Requires APDW to be handled from the point of production to the completion of bottling in accordance with all regulations in specified provisions of the water bottling statute governing the transportation, bottling, and handling of bottled water. 11)Authorizes a water bottling plant that bottles APDW to also bottle other potable water. 12)Requires APDW to be bottled in nonreturnable (one-way) bottles or packages with labels containing the following information in an easily readable format that complies with all of the following: a) The label shall state "sample water--not for sale" and "advanced purified water meeting all federal and state drinking water standards;" AB 2022 Page 4 b) The label shall set forth the name, address, telephone number, and Internet Web site of the operator of the facility producing the APDW; and, c) The label shall include a brief description of the APDW, including its source and the treatment processes to which the water is subjected. 13)Prohibits a single water purification facility from bottling more than 1,000 gallons of APDW in a calendar year. 14)Prohibits the sale and exchange of APDW. 15)Requires an operator of an advanced water purification facility seeking to bottle APDW to establish a collection and recycling program for distributed bottles. 16)Exempts a person who violates the provisions of the bill from penalties under the Sherman Food, Drugs, and Cosmetics laws. EXISTING LAW: EXISTING FEDERAL LAW: 1)Authorizes the Food and Drug Administration (FDA), under the Federal Food, Drug, and Cosmetics Act, to regulate bottled water products that are in interstate commerce. 2)Authorizes the United States Environmental Protection Agency (US EPA), under the Safe Drinking Water Act, to set national health-based standards for drinking water to protect against both naturally-occurring and anthropogenic contaminants. 3)Requires, when US EPA sets a new standard for a contaminant in AB 2022 Page 5 drinking water, that the FDA must establish a new standard for the same contaminant in bottled water or find that US EPA's new standard is not applicable to bottled water. EXISTING STATE LAW: 1)Authorizes the Department of Public Health (DPH) to license and regulate manufacturers of bottled water and vended water. Establishes requirements for bottled, vended, hauled and processed water. (Health and Safety Code (HSC) §111070 et seq.) 2)Requires, as a condition of licensure, water-bottling plants to annually prepare a bottled water report, including disclosure of the source of the bottled water, and to make the report available to each customer. (HSC § 111071) 3)Requires the State Water Board to maintain a drinking water program. (HSC § 1116271 et seq.) 4)Declares that a substantial portion of the future water requirements of this state may be economically met by beneficial use of recycled water. Finds that the utilization of recycled water by local communities for domestic, agricultural, industrial, recreational, and fish and wildlife purposes will contribute to the peace, health, safety and welfare of the people of the state. (Water Code (WC) § 13511) 5)Requires the State Water Board to establish uniform statewide recycling criteria for the various uses of recycled water where the use involves the protection of public health. (WC § 13521) 6)States that although there has been much scientific research on public health issues associated with indirect potable reuse through groundwater recharge, there are a number of significant unanswered questions regarding indirect potable reuse through surface water augmentation and direct potable AB 2022 Page 6 reuse. (WC § 13560 (d)) 7)Defines "direct potable reuse" as introducing recycled water either directly into a public water system or into a raw water supply immediately upstream of a water treatment plant; "indirect potable reuse for groundwater recharge" as using recycled water to replenish a groundwater basin or an aquifer that has been designated as a source of water supply for a public drinking water system; and, "surface water augmentation" as placing recycled water into a surface water reservoir used as a source of domestic drinking water supply. (WC § 13561) 8)Requires the State Water Board, by December 31, 2013, to adopt uniform water recycling criteria for indirect potable reuse for groundwater recharge. (WC § 13562(a)(1)) 9)Requires the State Water Board, by December 31, 2016, to develop and adopt uniform water recycling criteria for surface water augmentation. (WC § 13562(a)(2)(A)) 10)Requires, prior to adopting water recycling criteria for surface water augmentation, the State Water Board to submit the proposed criteria to the expert panel, which is required to review the proposed criteria and adopt a finding as to whether, in its expert opinion, the proposed criteria would adequately protect public health. (WC § 13562 (a)(2)(B)) 11)Prohibits the State Water Board from adopting uniform water recycling criteria for surface water augmentation unless and until the expert panel adopts a finding that the proposed criteria would adequately protect public health. (WC § 13562(a)(2)(C)). 12)Requires the State Water Board, on or before December 31, 2016, to investigate and report to the Legislature on the feasibility of developing uniform water recycling criteria for direct potable reuse. (WC § 13563 (a)) AB 2022 Page 7 13)Requires the State Water Board, in conducting the investigation on direct potable reuse, to examine all of the following, among other criteria: a) The availability and reliability of recycled water treatment technologies necessary to ensure the protection of public health; b) Multiple barriers and sequential treatment processes that may be appropriate at wastewater and water treatment facilities; c) Available information on health effects; d) Mechanisms that should be employed to protect public health if problems are found in recycled water that is being served to the public as a potable water supply; and, e) Monitoring needed to ensure protection of public health, including, but not limited to, the identification of appropriate indicator and surrogate constituents. (WC § 13563 (b)) 14)Requires the State Water Board to convene and administer an expert panel to advise it on public health issues and scientific and technical matters regarding development of uniform water recycling criteria for indirect potable reuse through surface water augmentation and investigation of the feasibility of developing uniform water recycling criteria for direct potable reuse. (WC § 13565) 15)Delineates advanced treatment criteria for oxidized wastewater. (CCR, Title 22, §60320.201) FISCAL EFFECT: Unknown. COMMENTS: AB 2022 Page 8 Need for the bill: According to the author, "By using advanced water purification technology, billions of gallons of water that would otherwise be wasted and sent to the ocean can be reused as a safe and reliable source of new precipitation-independent water to help fulfill California's ever-growing demand. For years, this water has been safely and sustainably mixed into groundwater basins and thus our drinking water supply, but the public could only directly sample this purified water at a water purification facility. This legislation to allow the bottling of small amounts of advanced purified water is an excellent way to expand that educational opportunity to Californians who don't have the opportunity or means to visit these advanced purification facilities. This water will not be sold; instead, it will be used to demonstrate to a broader audience the cutting-edge technology used to purify wastewater to near-distilled water quality." Recycled water: Water recycling is reusing treated wastewater for direct beneficial or controlled purposes, such as for agricultural and landscape irrigation, industrial processes, toilet flushing, and replenishing ground water basins. According the US EPA, recycled water can satisfy most water demands, as long as it is adequately treated to ensure water quality appropriate for the use. In addition to providing a dependable, locally-controlled water supply, water recycling can provide environmental benefits. By providing an additional source of water, water recycling can decrease the diversion of water from sensitive ecosystems. Other benefits include decreasing wastewater discharges and reducing and preventing pollution. Recycled water can also be used to create or enhance wetlands and riparian habitats. State water recycling policy: In 2009, the State Water Board adopted Resolution No. 2009-0011 to update the state's water recycling policy. This state policy includes the goal of increasing the use of recycled water in the state over 2002 levels by at least 1 million acre feet per year by 2020 and by at least 2 million acre feet per year by 2030. State law AB 2022 Page 9 recognizes that the use of recycled water for indirect potable reuse is critical to achieving the State Water Board's goals for increased use of recycled water for the state. State law also declares that the achievement of the state's goals depends on the timely development of uniform statewide recycling criteria for indirect and direct potable water reuse. State law states that although there has been much scientific research on public health issues associated with indirect potable reuse through groundwater recharge, there are a number of significant unanswered questions regarding indirect potable reuse through surface water augmentation and direct potable reuse. Recent legislative and regulatory action on recycled water in California: SB 918 (Pavley, Chapter 700, Statutes of 2010) revised the state's approach to regulating recycled water by requiring DPH to establish uniform statewide recycling criteria for each use of recycled water where the use involves the protection of public health. In 2014, all authority and responsibility for the state's drinking water programs were transferred from DPH to the State Water Board, including the recycled water program (HSC § 1116271). SB 918 requires the (now) State Water Board to take action on three uses of recycled water. First, it required the State Water Board, by December 31, 2013, to adopt uniform recycled water criteria for indirect potable reuse for groundwater recharge. The State Water Board has developed uniform regulations authorizing the use of highly treated wastewater for groundwater recharge, if specified requirements are met, including a requirement that the treated wastewater must have a residence time in the ground of at least two months, before reaching drinking water intake pumps. These regulations went into effect on June 18, 2014. Second, SB 918 requires the State Water Board, by December 31, 2016, to develop and adopt uniform water recycling criteria for surface water augmentation. The law also requires the State Water Board to convene and administer an expert panel to advise it on public health, scientific, and technical matters regarding AB 2022 Page 10 the development of uniform water recycling criteria for indirect potable reuse through surface water augmentation. The State Water Board reports that it is currently working with the expert panel and it is developing regulations for surface water augmentation with recycled water. It is on target to adopt these regulations by December 31, 2016. Finally, SB 918, and later SB 322 (Hueso, Chapter 637, Statutes of 2013), require the State Water Board, by December 31, 2016, to investigate and report to the Legislature on the feasibility of developing uniform water recycling criteria for direct potable reuse. Statue requires the State Water Board to examine specific information, including the availability and reliability of recycled water treatment technologies necessary to ensure the protection of public health; barriers and treatment processes that may be appropriate at wastewater and water treatment facilities; available information on health effects; mechanisms that should be employed to protect public health if problems are found in recycled water that is being served to the public as a potable water supply; and, monitoring needed to ensure protection of public health. The law also requires the State Water Board to convene and administer an expert panel to advise it the investigation of the feasibility of developing uniform water recycling criteria for direct potable reuse. The State Water Board has convened and is currently working with the expert panel, and expects to release the required report on direct potable reuse of recycled water by December 31, 2016. There is some concern about allowing the bottling and direct drinking of treated recycled water prior to the release of the State Water Board's report on the safety of the direct potable reuse of recycled water. Recycled water for direct consumption: In California, the State Water Board's Division of Drinking Water (DDW), in conjunction with the appropriate Regional Water Quality Control Boards, which are the permitting authorities, are responsible for evaluating the treatment, production, distribution, and use of recycled water. DDW does not regulate public consumption of AB 2022 Page 11 treated recycled water from projects that do not meet the definition of a public water system per CCR, Title 22, Section 64400. The State Water Board has not approved the use of any recycled water, including APDW, for direct potable reuse. The US EPA does not have regulations for treating wastewater to drinking water quality; they leave it up to the states to do so. While the State Water Board does regulate recycled water, it does not regulate bottled water or vended water -- these are regulated as food by DPH's Food and Drug Branch. It is unclear how bottled APDW would be regulated under the California bottled water law. Concerns about recycled water for direct consumption: While recycled water has potential for providing solutions for the state's limited water resources, recycled water regulations are currently being developed and potential human health impacts of the direct consumption of recycled water are being studied. Numerous contaminants, such as pharmaceuticals, personal care products (antibacterial soaps, sunscreen, bath gels, etc.), flame retardants, and other constituents of emerging concern, are more likely to be present in municipal wastewater than in other water sources. Although they typically exist in small concentrations, there is growing concern about the impact of constituents of emerging concern, and other unregulated compounds, on public health and the environment. Since there are currently no state or federal drinking water standards for these constituents, allowing the direct consumption of treated recycled water, as opposed to consumption after a spatial or temporal buffer as is required with groundwater or surface water recharging, may be cause for caution. Orange County Groundwater Replenishment System (GWRS): Operational since January 2008, Orange County's GWRS is the world's largest advanced water purification system for potable reuse, producing about 100 million gallons a day of highly-purified potable water. A joint project of the Orange County Water District and the Orange County Sanitation District AB 2022 Page 12 (which are also jointly sponsoring this bill), the GWRS takes treated wastewater from the Orange County Sanitation District and treats it further using microfiltration, reverse osmosis, and ultraviolet light with hydrogen peroxide. According to the Orange County Water District, the product water is near-distilled-quality. Currently, roughly half of the purified water from the GWRS is injected into Orange County's expanded seawater intrusion barrier. The remaining water is piped to percolation basins in Anaheim where the water filters through clay and rock into groundwater aquifers. There, the water blends with the existing groundwater before it is used as drinking water for northern and central Orange County residents. Treated water samples are currently offered to visitors at the GWRS. The Orange County Water District states that while the advanced purified water that they produce meets or exceeds all state and federal drinking water standards, it still faces a tough battle with public perception. They argue that the sampling of advanced purified water is seen as one of the most effective ways of educating policymakers and members of the community about the safe purification process for this growing source of water supply. They contend that public understanding of the purity of this water is seen as a key requirement for more widespread acceptance of potable reuse in California. Recent related bills: 1) SB 322 (Hueso, Chapter 637, Statutes of 2013). This bill adds additional requirements to the investigation and expert panel requirements in SB 918 (Pavley, Chapter 700, Statutes of 2010). 2) SB 918 (Pavley, Chapter 700, Statutes of 2010). This bill requires DPH (the responsibility for recycled water has since been shifted to the State Water Board) to adopt uniform water recycling criteria for indirect potable water reuse for groundwater recharge by December 31, 2013; to develop and adopt uniform water recycling criteria for surface water augmentation by December 31, 2016; and, to investigate and report on the feasibility of developing uniform water recycling criteria for direct potable reuse. AB 2022 Page 13 3) AB 1100 (Duval, 2009). This bill was very similar to AB 2200, as introduced, and would have allowed the bottling of potable reuse demonstration water, as defined, to be distributed, free of charge, for educational purposes or to promote water recycling. AB 1100 passed out the Assembly Environmental Safety Committee on a 7 - 0 vote, but subsequently failed passage in the Senate Environmental Quality Committee. Suggested amendments: The Committee may wish to amend the bill to: 1) Limit the volume of each sample of bottled APDW authorized to be distributed for educational purposes and to promote water recycling to no more than eight ounces. 2) Clarify that this bill does not exempt an advanced purified water facility from standards for bottling water imposed under federal law. REGISTERED SUPPORT / OPPOSITION: Support Orange County Sanitation District (Sponsor) Orange County Water District (Sponsor) WateReuse California (Sponsor) AB 2022 Page 14 Association of California Water Agencies CalDesal California Association of Sanitation Agencies California Coastal Protection Network California Coastkeeper Alliance California Municipal Utilities Association Costa Mesa Sanitary District Desal Response Group Eastern Municipal Water District Environmental Water Caucus Inland Empire Coastkeeper Irvine Ranch Water District Midway City Sanitation District Orange County Coastkeeper Orange County Water District Orange County Sanitation District Residents for Responsible Desalination Santa Barbara Coastkeeper Sierra Club Angeles Chapter Sierra Club California Southern California Watershed Alliance Surfrider Foundation Sustainable Silicon Valley Opposition None on file. Analysis Prepared by:Shannon McKinney / E.S. & T.M. / (916) 319-3965 AB 2022 Page 15