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ARIZONA STATE SENATE
Fifty-Sixth Legislature, Second Regular Session
REVISED
AMENDED
remedial groundwater incentive; brackish groundwater
Purpose
Defines brackish groundwater as groundwater containing total dissolved solids between 1,000 and 10,000 milligrams per liter and deems the use of the outlined hazardous substances and brackish groundwater as consistent with the management goal of an active management area (AMA) if outlined conditions apply.
Background
For the purpose of determining whether an assured water supply exists, the Director of the Arizona Department of Environmental Quality (ADEQ) must find that a groundwater replenishment district member's projected use is consistent with achieving the management goal for the AMA if: 1) the land for which a certificate or the city, town or private water company for which a designation is sought is in a groundwater replenishment district; 2) the Director of ADEQ has made either a preliminary determination that has not expired or a final determination that the district's plan for operation is consistent with achieving the management goal; and 3) the master replenishment account does not have a debit balance that exceeds the cumulative amount of the district's debits accrued during the four preceding calendar years (A.R.S. § 45-576.01).
Hazardous substance includes: 1) any substance designated by outlined statute and the Federal Clean Water Act; 2) any element, compound, mixture, solution or substance designated pursuant to section 102 of CERCLA; 3) any hazardous air pollutant listed by the Federal Clean Air Act; 4) any imminently hazardous chemical substance or mixture with respect to which the administrator has taken action pursuant to the Federal Toxic Substances Control Act; 5) and any substance that the Director of ADEQ, by rule, either designates as a hazardous substance following the designation of the substance by an outlined administrator or designates as a hazardous substance on the basis of a determination that such substance represents an imminent and substantial endangerment to public health (A.R.S. § 49-201).
Inert material means broken concrete, asphaltic pavement, manufactured asbestos-containing products, brick, rock, gravel, sand and soil. Inert material also includes material that, when subjected to a water leach test that is designed to approximate natural infiltrating waters, will not leach substances in concentrations that exceed numeric aquifer water quality standards, including overburden and wall rock that is not acid generating, taking into consideration acid neutralization potential, and that has not and will not be subject to mine leaching operations (A.R.S. § 49-201).
Remedial actions means actions that are reasonable, necessary, cost-effective and technically feasible in the event of the release or threat of release of hazardous substances into the environment, such as actions as may be necessary to investigate, monitor, assess and evaluate such release or threat of release, actions of remediation, removal or disposal of hazardous substances or taking such actions as may be necessary to prevent, minimize or mitigate damage to the public health or welfare or to the environment that may otherwise result form a release or threat of release of a hazardous substance. Remedial actions include the use of biostimulation with indigenous and bioaugmentation using microbes that are nonpathogenic, that are nonopportunistic and that are naturally occurring (A.R.S. § 49-281).
ADEQ may conduct a remedial investigation and feasibility study of a scored site or portion of the site to assess conditions on the site or portion of the site and to evaluate alternative potential remedies to the extent necessary to select a final remedy in a manner consistent with adopted rules and procedures. After evaluating the site or portion of a site, the Director of ADEQ must prepare a proposed remedial action plan and issue notice of the proposed plan to pursuant to the community involvement plan. A copy of the proposed remedial action plan must also be sent to each person on the preliminary list of potentially responsible parties with a notice that includes the outlined required information and that also must: 1) notify the recipients of the opportunity to propose alternative methods of allocation of liability among responsible parties; 2) provide a preliminary list of potentially responsible parties and summarize the basis for each party's liability, if the Director of ADEQ determines that cost recovery may be appropriate; 3) advise the recipient that all information known to the recipient regarding a person who may be liable and any facility within the site from which a release of hazardous substance may have occurred must be provided to ADEQ within a reasonable period set by ADEQ, but at least within 60 days; 4) within 90 days after the end of the public comment period, if ADEQ has received sufficient information identifying additional persons who may be responsible or facilities where a release of a hazardous substance may have occurred, the Director of ADEQ must investigate that person or facility within the site or decline to investigate and notify the person providing the information in writing of the decision (A.R.S. §§ 49-287.03 and 49-287.04).
The Joint Legislative Budget Committee (JLBC) fiscal note on H.B. 2186 estimates an increase in the workload of the Arizona Department of Water Resources (ADWR), but states that the magnitude of the impact cannot be determined in advance. JLBC notes that the increase in workload would depend on the number of applicants in AMAs that propose to use brackish groundwater and that H.B. 2186 would require ADWR to establish new rules, change operational processes and update information systems to separately track brackish groundwater approvals, plans and annual reports as well as differentiate brackish groundwater withdrawals from regular groundwater withdrawals. The JLBC fiscal note states that the new rule and data requirements would increase ADWR's administrative costs, but that ADWR has not yet provided an estimate of the fiscal impact of H.B. 2186 (JLBC fiscal note).
Provisions
1. Deems the use of brackish groundwater by a person with or applying for a certificate or designation of assured water supply during a year as consistent with the management goal of the AMA in which the remedial groundwater is withdrawn and is excluded when determining compliance with the management goal requirements if:
a) the Director of ADEQ determines that the brackish groundwater use is consistent with the management goal;
b) the person complies with outlined metering and reporting requirements;
c) the Director of ADEQ approves the brackish groundwater plan for the proposed withdrawal and use;
d) the person agrees to desalinate the brackish groundwater so that the water no longer meets the definition of brackish groundwater and complies with all applicable potable drinking water standards; and
e) if the brackish groundwater will be withdrawn from an exemption area or that is located within the boundaries of an irrigation district, the person uses or otherwise returns the treated brackish groundwater to the same exemption area or service area of an irrigation district from which the brackish groundwater was originally withdrawn.
2. Allows a person with or applying for a certificate or designation of assured water supply that is using or proposing to use brackish groundwater to apply to the Director of ADEQ for a determination that the person's use of the remedial groundwater is consistent with the management goal of the AMA by submitting an application on a form provided by the Director of ADEQ.
3. Requires the Director of ADEQ, if the Director approves an application for an approved brackish groundwater plan, to calculate the annual amount of brackish groundwater use that is deemed consistent with the management goal.
4. Requires the Director of ADEQ to establish rules;
a) establishing a simplified application process to determine that brackish groundwater use is consistent with the management goals of an AMA;
b) outlining the timeline for review for a submitted application; and
c) outlining the formulation to calculate, increase or decrease the annual authorized volume that can be withdrawn.
5. Requires a person with or applying for a certificate or designation of assured water supply that is withdrawing or proposing to withdraw brackish groundwater that is or has been determined to be consistent with the management goal to:
a) meter the brackish groundwater withdrawals separately from groundwater withdrawn pursuant to another groundwater withdrawal authority; and
b) include in its annual reports the amount of brackish groundwater withdrawn during the reporting year that is consistent with the management goal and the purposes for which the brackish groundwater was used.
6. Requires a person with or applying for a certificate or designation of assured water supply that is withdrawing or proposing to withdraw or use brackish groundwater and is deemed consistent with the management goals of an AMA to provide, at least 120 days before commencement of the withdrawals or use or 120 days after the general effective date, whichever is later, written notice to the Director of ADEQ of:
a) the annual volume of brackish groundwater to be withdrawn from each well pursuant to the approved brackish groundwater plan;
b) the total amount of brackish groundwater that is located in the relevant area from which the annual authorized volume of brackish groundwater will be withdrawn;
c) the time period in which brackish groundwater will be withdrawn and used;
d) the anticipated or actual commencement date of withdrawals or use;
e) the purpose for which the brackish groundwater will be used;
f) the person with or applying for a certificate or designation of assured water supply to which the brackish groundwater will be pledged; and
g) the name and telephone number that the Arizona Department of Water Resources may contact regarding the withdrawal or use.
7. Defines annual authorized volume as the annual volume of brackish groundwater that a person may withdraw pursuant to an approved brackish groundwater plan issued by the Director of ADEQ.
8. Defines approved brackish groundwater plan as a plan that the Director of ADEQ has approved and determined to be consistent with the management goals of an AMA for the withdrawal of brackish groundwater within the AMA.
9. Defines brackish groundwater as groundwater that contains total dissolved solids between 1,000 and 10,000 milligrams per liter.
10. Defines brackish groundwater use to mean, for any year, the amount of remedial groundwater withdrawn from within an AMA pursuant to an approved brackish groundwater plan and used by a person with or applying for a certificate or designation of assured water supply during the year, not to exceed the annual authorized volume.
11. Makes technical and conforming changes.
12. Becomes effective on the general effective date.
Amendments Adopted by Committee
1. Outlines requirements for the use and regulation of brackish groundwater, rather than remedial groundwater.
2. Deems the use of remedial brackish groundwater by a person with or applying for a certificate or designation of assured water supply during a year as consistent with the management goal of the AMA in which the remedial groundwater is withdrawn and is excluded when determining compliance with the management goal requirements if:
a) the Director of ADEQ approves the brackish groundwater plan for the proposed withdrawal and use;
b) the person agrees to desalinate the brackish groundwater so that the water no longer meets the definition of brackish groundwater and complies with all applicable potable drinking water standards; and
c) if the brackish groundwater will be withdrawn from an exemption area or that is located within the boundaries of an irrigation district, the person uses or otherwise returns the treated brackish groundwater to the same exemption area or service area of an irrigation district from which the brackish groundwater was originally withdrawn.
3. Removes the use of remedial groundwater by a person with or applying for a certificate or designation of assured water supply during a year for which outlined conditions apply as consistent with the management goal of an AMA in which the remedial groundwater is withdrawn and is excluded when determining compliance with management goal requirements without approval of the Director of ADEQ.
4. Allows a person to apply to the Director of ADEQ for a determination that the person's use of the remedial groundwater is consistent with the management goal of the AMA by submitting an application on a form provided by the Director of ADEQ if the person has or is applying for a certificate or designation of assured water supply that is using or proposing to use brackish groundwater, rather than has or is applying for a certificate or designation or has agreed in a consent decree or other document approved by ADEQ or the U.S. Environmental Protection Agency (EPA) to use remedial groundwater.
5. Requires the Director of ADEQ to calculate the annual amount of brackish groundwater use that is deemed consistent with the management goal if the Director approves an application for an approved brackish groundwater plan, rather than a determination that the person's use of the remedial groundwater is consistent with the management goal of the AMA.
6. Requires the written notice to the Director of ADEQ by a person with or applying for a certificate or designation of assured water supply that is withdrawing or proposing to withdraw or use brackish groundwater and is deemed consistent with the management goals of an AMA to provide the total amount of brackish groundwater that is located in the relevant area from which the annual authorized volume of brackish groundwater will be withdrawn, rather than the remedial groundwater that meets the outlined definition of a hazardous substance.
7. Removes the requirement that written notice to the Director of ADEQ by a person with or applying for a certificate or designation of assured water supply that is withdrawing or proposing to withdraw or use brackish groundwater and is deemed consistent with the management goals of an AMA provide a copy of a document evidencing ADEQ or EPA approval of the person's withdrawal and use of remedial groundwater, such as a remedial action plan, record of decision or consent decree.
8. Removes the requirement that a copy of a proposed remedial action plan be sent to each person on the preliminary list of potentially responsible parties to advise the recipient that all information known to the recipient regarding a person who may be liable and any facility within the site from which a release of hazardous substance, except remedial groundwater that meets the outlined definition of a hazardous substance, may have occurred must be provided to ADEQ within a reasonable period of time set by ADEQ, but at least within 60 days.
9. Removes the exemption of a hazardous substance that meets the outlined definition from substances that the Director of ADEQ must investigate within 90 days after the end of the public comment period, if ADEQ has received sufficient information identifying additional persons who may be responsible.
10. Removes the modifications to the definitions of hazardous substance, inert material and remedial action.
11. Removes the definitions of remedial groundwater and authorized remedial groundwater use.
12. Defines terms.
13. Makes technical and conforming changes.
Revisions
· Updates the fiscal impact statement.
House Action Senate Action
NREW 2/13/24 DP 6-4-0-0 NREW 3/21/24 DPA 4-3-0
3rd Read 2/22/24 31-28-0-0-1
Prepared by Senate Research
April 1, 2024
RA/SDR/slp