CSA
Summary
Read the report at California State Auditor ↗
California’s
Drinking Water:
State and Local Agencies Need to Provide
Leadership to Address Contamination of
Groundwater by Gasoline Components and
Additives
December 1998
98112
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You can obtain reports by contacting
the Bureau of State Audits at the following address:
California State Auditor
Bureau of State Audits
555 Capitol Mall, Suite 300
Sacramento, California 95814
(916) 445-0255 or TDD (916) 445-0255 x 248
OR
This report may also be available
on the worldwide web
http://www.bsa.ca.gov/bsa/
Permission is granted to reproduce reports.
December 17, 1998 98112
The Governor of California
President pro Tempore of the Senate
Speaker of the Assembly
State Capitol
Sacramento, California 95814
Dear Governor and Legislative Leaders:
As requested by the Joint Legislative Audit Committee, the Bureau of State Audits presents its audit
report concerning improvements needed to better protect California’s groundwater from contamination
by gasoline components and additives. This report concludes that in spite of mounting evidence of
gasoline contamination of our drinking water, the Department of Health Services and the State Water
Resources Control Board missed opportunities to aggressively address the problem.
Also, the State’s process for regulating the safety of its citizens’ water, and especially for ensuring that
gasoline does not contaminate drinking-water sources, has multiple shortcomings. The State has been
inconsistent in its efforts to identify and clean up leaking underground storage tanks, and the California
Environmental Protection Agency’s process for auditing the local agencies responsible for issuing
permits to storage tank operators and for monitoring the tanks requires modification to assure that the
agencies catch all leaks and deficiencies. Also, the Department of Health Services needs to improve its
procedures to ensure that public water systems submit laboratory results promptly so agencies can
identify and alleviate contamination quickly.
Finally, the Department of Health Services and the state and regional boards are not making certain that
public water system operators, storage tank owners or operators, and regulatory agencies responsible
for detecting and cleaning up chemical contamination are doing their jobs. To further compound this
problem, the Department of Health Services, the regional boards, and the local agencies have not
vigorously enforced laws that require prompt follow-up monitoring for chemical findings and
contaminated sites, notifying the public about chemicals found in groundwater, and managing the
cleanup of chemical contamination of groundwate.r
Respectfully submitted,
KURT R. SJOBERG
State Auditor
CONTENTS
Summary 1
Introduction 5
Chapter 1
The State Has Not Exerted
Leadership in Addressing Gasoline
Contamination of Drinking-Water
Sources 15
Recommendations 37
Chapter 2
The State’s Regulatory Agencies
Need to Share Information About
Water Quality Problems More
Effectively 41
Recommendations 47
Appendix 49
Responses to the Audit
California Environmental Protection Agency R-1
State Water Resources Control Board R-3
Department of Health Services R-9
California State Auditor’s Comments
on the Response From the Department
of Health Services R-19
SUMMARY
RESULTS IN BRIEF
A
lthough the State of California has ample evidence that
gasoline leaking from underground storage tanks is
jeopardizing the safety of our drinking-water supplies, it
Audit Highlights . . . has not acted quickly and decisively to address this potential
health hazard. The scientific community and the public are
Our review of the State’s
particularly concerned about leaking storage tanks contaminat-
regulatory process for
ing numerous groundwater sites and some drinking-water wells
ensuring the quality of
drinking water concludes with methyl tertiary-butyl ether (MTBE), a gasoline additive that
the following: reduces air pollution from automobile exhaust, but which the
(cid:254) federal government has classified as a possible cancer-causing
Health Services could have
acted sooner to adopt agent.
regulations addressing
MTBE’s impact on
State legislation directs various state and local agencies to
drinking-water supplies.
oversee the safety of California’s drinking water, including the
Also, the state board has
not yet issued specific Department of Health Services (Health Services), the State
guidelines or standardized Water Resources Control Board (state board), the California
procedures for cleaning up
Environmental Protection Agency (California EPA), and nine
MTBE-contaminated sites.
Regional Water Quality Control Boards (regional boards). As
(cid:254)
The State’s regulatory early as 1990, Health Services’ officials became aware that MTBE
process has multiple was contaminating drinking-water wells within California;
shortcomings in the areas
however, Health Services did not establish regulations to test for
of identifying and
managing threats to MTBE in drinking water until 1997, nor did it adopt interim
drinking-water supplies. emergency regulations, even though it has the authority to do
Further, regulatory entities
so. The state board also shares responsibility for not providing
have not adequately
leadership to the regional boards and local agencies responsible
enforced water quality
laws. for alleviating groundwater contamination because it has not
yet issued specific guidelines or standardized procedures for
(cid:254)
Both Health Services and
cleaning up MTBE. Thus, MTBE levels at some contaminated
the state board are
groundwater sites remain high, posing potential threats to
working on parallel
mapping projects to nearby drinking-water wells.
identify potential sources
of drinking-water
Moreover, the State’s process for regulating the safety of its
contamination. This
duplication of efforts citizens’ water, and especially for ensuring that gasoline does not
could be unnecessarily contaminate drinking-water sources, has multiple shortcomings.
costly to the State. The State has been inconsistent in its efforts to identify and
clean up leaking underground storage tanks, and the California
EPA’s approach for overseeing the local agencies responsible
for issuing permits to storage tank operators and for monitoring
the tanks may not assure that the agencies catch all leaks and
deficiencies. Health Services’ procedures for obtaining sample
C A L I F O R N I A S T A T E A U D I T O R 1
analyses from public water systems also have flaws. Health
Services needs to improve its procedures to ensure that public
water systems submit laboratory results promptly so that agen-
cies can identify and alleviate contamination quickly.
To further compound the problems surrounding MTBE contami-
nation, Health Services and the state and regional boards are not
making certain that public water system operators, storage tank
owners or operators, and regulatory agencies responsible for
detecting and cleaning up chemical contamination are doing
their jobs. Not only does the State regulate underground storage
tanks ineffectively, it has failed in some instances to aggressively
enforce the State’s Safe Drinking Water Act and the laws govern-
ing underground storage tanks. Specifically, Health Services,
the regional boards, and local agencies have not adequately
enforced laws that require prompt follow-up monitoring for
chemical findings and contaminated sites, notified the public
about chemicals found in drinking water, and managed the
complete cleanup of chemical contamination of groundwater.
Some regulatory problems arise from poor communication
among various state and local agencies. However, a geographical
information system (GIS)—the State’s proposed solution for
assessing contamination risks to drinking-water sources, as well
as for relaying information about these risks to responsible
agencies—also requires improvement. Currently, both Health
Services and the state board are working on GIS projects to map
potential sources of drinking-water contamination, and this
duplication of effort could be unnecessarily costly to the State.
Health Services should serve as the lead developer for the GIS
because it can use the system to evaluate risks to the State’s
approximately 16,000 drinking-water sources and thus accom-
plish the goals of the federally mandated Drinking Water Source
Assessment and Protection Program. Finally, neither agency can
effectively implement a GIS until the State significantly im-
proves the databases containing information on the locations of
possible contamination.
RECOMMENDATIONS
To ensure that California’s drinking water is safe from contami-
nation by gasoline leaking from underground storage tanks, the
California Environmental Protection Agency and the Health and
Welfare Agency, which oversees Health Services, need to make
2 C A L I F O R N I A S T A T E A U D I T O R
certain that the state, regional, and local agencies listed below
fulfill their designated responsibilities and improve their policies
and procedures in the ways outlined.
The California Environmental Protection Agency needs to take
the following steps to locate leaking underground storage tanks:
• Ensure that local agencies increase their efforts to identify
storage tanks without permits, issue permits as appropriate,
monitor storage tank safety, and penalize owners or operators
that delay reporting leaks.
• Modify its existing procedures for evaluating local agencies’
adherence to program requirements for leaking storage tanks
by requiring its own evaluators to review these cases.
The Department of Health Services needs to do the following to
manage threats to drinking water systems:
• Strengthen its process for promptly obtaining and analyzing
laboratory results from all public water systems so it can
quickly notify other agencies of threats to drinking water.
• Ensure that it assesses the safety of drinking-water sources for
public water systems at least once every three years, as re-
quired by state regulations.
• Consistently enforce the State’s water quality laws by follow-
ing up on corrective actions taken by the district offices and
the local agencies.
• Take the lead in establishing a geographical information
system (GIS) that will fulfill requirements for the federally
mandated Drinking Water Source Assessment Protection
Program, help the State monitor risks to drinking-water
sources, and allow for state and local agencies to exchange
accurate information about these risks.
The State Water Resources Control Board should act on the
following suggestions to help prevent further contamination of
drinking-water wells:
• Issue the regional boards and local agencies a set of clear
guidelines for investigating and cleaning up MTBE in ground-
water.
C A L I F O R N I A S T A T E A U D I T O R 3
• Assist in developing Health Services’ GIS by correcting
problems with the state board’s Leaking Underground Storage
Tank Information System (LUSTIS) so that this database is
both accurate and compatible with GIS.
Further, the regional boards and local oversight program
agencies directly responsible for managing groundwater sites
affected by gasoline should take the following actions:
• Notify Health Services promptly about potential contamina-
tion.
• Use their enforcement authority to penalize storage tank
owners or operators who do not comply with the law.
• Continuously follow up on enforcement actions and cleanup
efforts.
AGENCY COMMENTS
The Department of Health Services generally agrees with the
recommendations in our report, with the exception of our
recommendation that it should no longer permit its staff to
round off the numbers when determining whether a chemical
exceeds the maximum contaminant level. Additionally, Health
Services still believes that emergency regulations were not
justified and that the approach it took to regulate MTBE was
prudent. Finally, Health Services states that if it is to expand its
role on the State’s GIS projects, it will require a substantial
increase in resources.
Similar to Health Services, the State Water Resources Control
Board generally concurs with the recommendations in our
report. However, the state board believes that it would be
appropriate for it to complete the tasks for its existing GIS
project, outlined in the 1997 legislation, before Health Services
assumes the lead role for ensuring that a GIS provides the neces-
sary information to protect drinking-water wells. Also, the state
board indicates that it will work cooperatively with Health
Services to ensure that it avoids duplication of efforts and that
its efforts are complementary to those of Health Services.
Finally, the California Environmental Protection Agency sup-
ports the position taken by the state board. In addition, the
California EPA provides some supplemental information about
its Unified Program. n
4 C A L I F O R N I A S T A T E A U D I T O R
INTRODUCTION
BACKGROUND
P
ublic concern with the drinking water from groundwater
sources has heightened since oil refiners chose methyl
tertiary-butyl ether, commonly referred to as MTBE, to meet
federal cleaner air quality requirements (see box). The refiners
selected MTBE primarily because it has a reasonable price; ready
availability; a high octane rating;
and an ability to dissolve, disperse,
What is MTBE? and suspend evenly in both gasoline
and water. However, since the State
MTBE (methyl tertiary-butyl ether) is a chemical
increased its use of MTBE to meet the
compound that oil refiners add to gasoline. Because of
the oxygen-containing properties of MTBE, gasoline 1995 federal requirements, MTBE
can burn more completely, reducing exhaust emissions detected in drinking water has been
causing air pollution. responsible for wells closed in Santa
Monica, Lake Tahoe, Sacramento,
and Santa Clara. Although such
Why does California use MTBE in gasoline?
gasoline contaminants as benzene,
The 1990 amendments to the federal Clean Air Act
toluene, ethylbenzene, and xylenes
require the use of oxygenates in areas with poor air
—commonly referred to as BTEX—
quality. Since 1992, California has added oxygenates to
gasoline during the winter to reduce carbon monoxide have always threatened water
in areas with poor air quality, which use about 80 sources, MTBE’s high solubility in
percent of the State’s gasoline. In 1995, additional soil and water poses more of a
amendments to the Clean Air Act required that vehicles
hazard to drinking water from
use reformulated gasoline year-round that contains a
groundwater sources because it can
minimum oxygen content of 2 percent by weight to
occur at greater concentrations.
help reduce smog in the worst areas, including Los
Angeles, Sacramento, and San Diego. Once it infiltrates groundwater,
MTBE generally moves with the
same speed and flow pattern as
Does MTBE affect our health?
water; thus, it can travel far from
Although researchers have no conclusive data on the such leak sources as both under-
health effects of MTBE contamination in drinking water,
ground storage tanks (storage tanks)
evidence from animals studies indicate that MTBE may
and pipelines containing gasoline.
be a human carcinogen.
On the other hand, BTEX, a tradi-
tional component of gasoline, is less
soluble than MTBE and remains
relatively close to the leak source, so BTEX leaks can be more
readily contained. For the purposes of this audit, we have de-
fined gasoline contamination as the presence of BTEX and MTBE
in drinking water.
C A L I F O R N I A S T A T E A U D I T O R 5
In 1997, the Legislature, responding to public concern, called
for a comprehensive assessment from the University of Califor-
nia of MTBE’s effect on human health and the environment.
In addition, the Legislature asked the university to propose
viable alternatives to MTBE to reduce California’s air pollution
problems.
AGENCIES RESPONSIBLE FOR ENSURING
SAFE DRINKING WATER
Through its water quality monitoring and inspection program,
the Department of Health Services (Health Services) has primary
responsibility for ensuring the safety of the State’s drinking
water. Various other enti-
ties, however, play addi-
University of California’s Assessment of MTBE tional roles in ensuring
that the State’s drinking
The University of California conducted an independent study to
water from groundwater
assess the potential health effects of MTBE, possible alternatives to
its use, and its effect on California’s groundwater. The university sources is free from gaso-
presented the following conclusions to the public in November line contaminants, such as
1998: MTBE. The State Water
Resources Control Board
• MTBE is an animal carcinogen with the potential to cause
(state board), nine Regional
cancer in humans. Anecdotally reported health effects of
Water Quality Control
MTBE exposure were headache, nausea or vomiting, burning
sensation in the nose or mouth, coughing, dizziness, Boards (regional boards),
disorientation, and eye irritation, among other symptoms. and local agencies oversee
the investigation and
• If concentrations of MTBE travel in groundwater over periods
cleanup of gasoline storage
of years or decades, cleanup will become significantly more
tank leaks. Additionally,
difficult and costly. Thus, appropriate entities should
local agencies issue permits
immediately evaluate the extent of known or suspected
groundwater contamination and potential threats to drinking- and inspect storage tanks.
water supply wells. Finally, the Office of the
State Fire Marshal (Fire
• California should gradually decrease its use of MTBE over
Marshal) investigates the
several years, and the State should promptly assess the use of
cause of pipeline leakages
other oxygenates, such as ethanol.
and oversees their repair.
However, local agencies,
such as county or city fire
departments, are chiefly responsible for ensuring that pipeline
operators clean up leaks or spills. Each agency’s role is outlined
below.
6 C A L I F O R N I A S T A T E A U D I T O R
FIGURE 1
Monitoring Potential Sources of Groundwater Contamination in
Public Drinking-Water Supplies
The Department of • The storage tank owner or operator obtains an operating
Health Services: permit from the local implementing agency.
• Monitors public • The permit outlines a monitoring program, which includes
drinking-water monitoring frequency, methods and equipment, a preventive
supplies for maintenance schedule, and a response plan for removing and
contaminants. disposing of any hazardous materials.
• Reports data on
water quality to • The storage tank owner or operator immediately notifies the
the State. local implementing agency of leakage.
• Issues citations to • The owner or operator submits a written report to the local
those facilities agency within five days.
violating water • The owner or operator conducts a preliminary site assessment.
quality laws and
n If only soil is contaminated, the local implementing agency
reviews plans for
oversees cleanup.
new water
systems. n If groundwater is contaminated, the regional board or
oversight program agency oversees cleanup.
Public
Drinking
Water
Service
Station
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Storage tank
Gasoline
Leakage
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Groundwater
(cid:0)(cid:1)(cid:2)yz{(cid:3)T¥(cid:2)(cid:3){|(cid:3)|(cid:1)(cid:2)z{(cid:0)y(cid:2)(cid:3){|(cid:3)|(cid:1)(cid:2)z{(cid:0)y(cid:2)(cid:3){|(cid:3)|(cid:1)(cid:2)z{(cid:0)y(cid:2)(cid:3){|(cid:3)|(cid:1)(cid:2)z{(cid:0)y(cid:2)(cid:3){|(cid:3)|(cid:1)(cid:2)z{(cid:0)y(cid:2)(cid:3){|(cid:3)|(cid:2){(cid:0)y(cid:2)(cid:3){|(cid:1)(cid:3)z|
(cid:0)(cid:3)|(cid:1)R£(cid:1)z(cid:2)y{(cid:3)|(cid:0)(cid:1)(cid:2)yz{(cid:3)|(cid:0)(cid:1)(cid:2)yz{(cid:3)|(cid:0)(cid:1)(cid:2)yz{(cid:3)|(cid:0)(cid:1)(cid:2)yz{(cid:3)|(cid:0)(cid:1)(cid:2)yz{(cid:0)(cid:2)y{(cid:1)(cid:3)z|
Groundwater
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C A L I F O R N I A S T A T E A U D I T O R 7
(cid:2)(cid:3)(cid:2){|{(cid:2)(cid:3){|(cid:2)(cid:3){|(cid:2)(cid:3){|(cid:2)(cid:3){|(cid:2)(cid:3){|(cid:2)(cid:3){|(cid:3)|
The Department of Health Services’ Role in
Monitoring Water Quality
Under the federal Safe Drinking Water Act (act), the State is
required to regulate contaminants that may be health risks in
drinking-water supplies for public water systems serving at least
25 people or having at least 15 service connections.
Health Services’ Division of Drinking Water and Environmental
Management (division) oversees the State’s safe drinking-water
program by developing water quality and monitoring regula-
tions; studying contaminants in drinking water; and compiling,
evaluating, and reporting data on drinking-water quality in the
State. The division also monitors and inspects approximately
8,500 public water systems throughout the State; however, only
about 4,700 of these systems are required to monitor for such
organic chemical contaminants as BTEX and MTBE. Public water
systems provide water for human consumption through pipes or
other constructed conveyances. The Appendix provides a de-
tailed overview of the various public water system classifications.
Health Services’ staff in its 15 district offices inspect water
facilities, issue citations to facilities violating water quality laws,
issue permits allowing facilities to operate, and review plans for
new water system facilities. To assist with its regulatory responsi-
bilities, Health Services has delegated the administration and
enforcement of water quality regulations for small public water
systems to 34 county health departments, commonly referred to
as local primacy agencies (primacy agencies). However, the
division remains responsible for overseeing, assisting, and
training the primacy agencies, which regulate 2,283 small public
water systems, each serving less than 200 service connections all
year.
The Functions of the Water Quality Control
Boards and Local Agencies
The state board administers state and federal laws pertaining to
prevention and cleanup of storage tank leaks. In addition, the
State has established a permit program dictating to tank owners
and operators the proper design, construction, and monitoring
of new and existing storage tanks. Funded in part by fees
charged to the tank owners, the permit program is the responsi-
bility of 107 local implementing agencies (implementing agen-
cies), composed mainly of county environmental health depart-
ments and city fire departments throughout the State.
8 C A L I F O R N I A S T A T E A U D I T O R
The implementing agencies issue tank operating and closure
permits, inspect and approve tank construction and monitoring
systems, and oversee leak
cleanup in selected cases. The
Status of the Requirements for Upgrading Storage Tanks
State intended the permit pro-
State law gave storage tank owners a 10-year time frame, gram to prevent future water
ending December 22, 1998, to remove, replace, or upgrade
quality problems; thus, the
tanks that do not meet certain state and federal standards.
program requires applicants to
After January 1, 1999, those tank owners that have not
describe their safeguards for
upgraded by the deadline will not receive petroleum
products. preventing or detecting leaks
from underground storage tanks.
As of September 30, 1998, 27 of the implementing agencies For example, many storage tanks
that we surveyed reported having issued upgrade certificates
have alarms that set off if there
for only 18.5 percent of their 15,765 storage tanks. The
is a leak. Additionally, the
agencies’ delays in issuing certificates were due primarily to
implementing agencies are
current workload demands. However, recent legislation will
allow the implementing agencies a 90-day extension to responsible for inspecting each
issue upgrade certificates for storage tanks already meeting storage tank site at least once
the specified design and construction standards by the every three years to determine
deadline.
whether the storage tank system
complies with construction
standards and with monitoring
and testing requirements, and whether the tank system is in safe
operating condition.
Finally, as a condition of receiving a permit to operate an under-
ground storage tank, the owner or operator is required to notify
the local agency immediately about any leaks or spills into the
soil or groundwater and then to submit a written report within
five days documenting the incident. When a storage tank has
leaked and the implementing agency has identified contamina-
tion, the tank owner or operator must clean up the contami-
nated site.
Regional boards and local agencies share the job of overseeing
cleanup of storage tank leaks or spills affecting groundwater. As
part of its Local Oversight Program (oversight program), the
state board has contracted with 20 local agencies that oversee
the investigation and cleanup of leaking storage tanks. Agencies
in this oversight program also serve as implementing agencies,
so they issue permits, inspect storage tanks, and oversee the
cleanup of contaminated storage tank sites, after which the
regional board certifies that the cleanup is complete. An appro-
priate regional board regulates any jurisdictions not included in
the State’s oversight program.
C A L I F O R N I A S T A T E A U D I T O R 9
For cases in which a regional board is the overseeing agency for
a cleanup, the regional board approves the investigation and
cleanup proposals storage tank owners or operators submit.
Regional boards also provide technical assistance to local agen-
cies and storage tank owners, advising them on proper monitor-
ing, well construction, sampling techniques, and cleanup tech-
nology.
The Office of the State Fire Marshal’s Role in
Overseeing Pipeline Leaks
The Office of the State Fire Marshal (Fire Marshal), which is part
of the Department of Forestry and Fire Protection, is responsible
for ensuring that pipeline operators within the State safely
transport such hazardous liquids as gasoline. Pipeline operators
are to report any unauthorized releases of hazardous liquids
immediately to both the local fire department and the State’s
Office of Emergency Services (OES). The OES’s warning center
then notifies various local, state, and federal agencies, including
the Fire Marshal, Health Services, and the state and regional
boards. If the leak is from a pipeline, Fire Marshal engineers
investigate the cause and remain on-site until the pipeline is
repaired. The engineers provide technical expertise and advice
on the proper procedures for mitigating the release and repairing
the pipeline to the pipeline operators and other local agencies
responsible for the cleanup, such as county or city fire depart-
ments; however, the Fire Marshal does not have direct authority
for ensuring the cleanup of pipeline releases of gasoline con-
taminants.
SCOPE AND METHODOLOGY
The Joint Legislative Audit Committee requested that the Bureau
of State Audits determine whether the State is adequately pro-
tecting California’s drinking water from gasoline contamination
by leaking underground storage tanks and pipelines that trans-
port hazardous liquids. However, multiple factors helped us
determine that the audit should focus mainly on gasoline
contamination resulting from storage tank leaks. First, investiga-
tions of contaminated drinking-water sources generally indicate
that storage tanks, rather than pipelines, are at fault. Second,
although the Fire Marshal inspects pipelines and oversees the
repair of leaking pipelines, it has no direct responsibility for
cleaning up these spills. Finally, the Fire Marshal is not required
to monitor the State’s water quality. For these reasons, this
10 C A L I F O R N I A S T A T E A U D I T O R
report addresses the effect of gasoline contamination only on
drinking water obtained from groundwater sources, that supply
approximately 40 percent of the State’s drinking water, and does
not encompass pipeline leaks.
To understand the State’s regulatory responsibilities for ensuring
the safety of drinking water and protecting it from storage tank
and pipeline releases of hazardous liquids, we reviewed the
relevant laws, regulations, and policies governing these activi-
ties. In addition, we conducted interviews with management of
Health Services, the state board, and selected regional boards to
discuss existing and future policy decisions.
To learn about MTBE and its effect on groundwater, we reviewed
information from the federal Environmental Protection Agency,
the California Environmental Protection Agency, the University
of California, Lawrence Livermore National Laboratory, the
Santa Clara Valley Water District, and the Orange County Health
Care Agency.
To determine how Health Services developed its standards
and procedures for monitoring and testing drinking water and
to confirm that the standards and procedures are at least as
stringent as those established by the federal Environmental
Protection Agency, as required, we compared the federal and
state laws and regulations. We focused on those laws and regula-
tions prescribing testing frequencies, location of sources tested,
the contaminants the tests should detect, acceptable levels of
contamination, reporting requirements, and responses to identi-
fied contamination. We found no significant differences be-
tween the federal laws and regulations and California’s compa-
rable statutes and regulations.
To evaluate whether Health Services properly monitors public
water systems, we conducted field visits to nine of its district
offices and four primacy agencies. The nine districts we selected
regulate public water systems that the Health Services’ database
has identified as having significant amounts of BTEX and MTBE.
We reviewed at least three water systems from each district.
However, one district had only two public water systems with
chemical findings for BTEX and MTBE. At each of the four
primacy agencies in our sample, we chose three water systems
for review. We tested a total of 39 public water systems for
adherence to established laws, policies, and procedures regard-
ing water quality monitoring. Five of the 39 public water sys-
tems tested were brought to our attention by interested parties.
C A L I F O R N I A S T A T E A U D I T O R 11
To assess whether the regional boards and local agencies are
effectively managing leaking storage tanks that threaten ground-
water, we conducted field visits to five regional boards and six
local agencies and reviewed selected case files. We randomly
selected 34 cases of leaking storage tanks obtained from the state
board’s database, the Leaking Underground Storage Tank Infor-
mation System (LUSTIS). In addition, we selected 9 cases that
interested parties brought to our attention. Thus, we reviewed 43
cases in which leaking storage tanks had contaminated ground-
water.
To assess the reliability and completeness of the State’s Water
Quality Monitoring and Water Quality Information databases,
both maintained by Health Services, we interviewed staff and
examined relevant information, such as administrative controls,
procedures manuals, system narratives, flowcharts, and software
guidelines. Additionally, to assess the accuracy of these two
databases, we obtained the laboratory results for selected public
water systems from 14 state-certified testing laboratories and
compared those results to the information contained in the
databases.
We performed similar procedures to assess the reliability and
completeness of the LUSTIS, which tracks releases from storage
tanks. We also reviewed the feasibility study outlining the
purpose of the LUSTIS. Furthermore, we reviewed the audit
reports prepared by the state board’s Office of Statewide Consis-
tency for eight of the nine regional boards. These reports iden-
tify deficiencies with the LUSTIS and the related responses from
the regional boards. Finally, because the State has no database
for tracking releases from pipelines that transport hazardous
liquids, we were unable to evaluate this information.
To determine the progress the State has made towards meeting
the mandated certification deadline of December 22, 1998, for
upgrading underground storage tanks containing petroleum, we
randomly selected and surveyed 27 of the 107 implementing
agencies about this issue. Specifically, we asked each of the 27
agencies to list the number of underground storage tanks under
its jurisdiction, the percentage of these tanks that are currently
certified, and the overall percentage expected to receive certifica-
tion by the deadline. Furthermore, we reviewed recent legisla-
tion allowing implementing agencies to petition the state board
before December 1, 1998, for a 90-day extension for receiving
their upgrade certificates.
12 C A L I F O R N I A S T A T E A U D I T O R
Finally, to evaluate the State’s planned approach for establishing
a geographical information system (GIS), we reviewed existing
laws requiring the state board to determine the feasibility of
such a mapping system. Additionally, we reviewed Health
Services’ proposed plans for developing a GIS to support its
assessment of the risk to California’s drinking-water sources. n
C A L I F O R N I A S T A T E A U D I T O R 13
Blank page inserted for reproduction purposes only
14 C A L I F O R N I A S T A T E A U D I T O R
CHAPTER 1
The State Has Not Exerted
Leadership in Addressing Gasoline
Contamination of Drinking-Water
Sources
CHAPTER SUMMARY
T
he State of California has missed opportunities to aggres-
sively address the problem of gasoline contamination
of our drinking water even though the State has had
sufficient evidence that leaking storage tanks and gasoline
additives pose a major threat to California’s groundwater. The
State’s Department of Health Services (Health Services) has
delayed adopting regulations to test for the presence of methyl
tertiary-butyl ether (MTBE), which may be a human carcinogen,
and has not disseminated guidelines for its clean up. In addi-
tion, flaws exist in the regulatory process for ensuring that
California consumers receive drinking water from groundwater
sources free of gasoline contaminants. Specifically, early detec-
tion methods for identifying releases of gasoline contaminants
are not always reliable and tank owners and operators are not
promptly reporting threats to drinking water. Further, once
regulatory agencies have identified gasoline contamination,
these agencies have not vigorously managed efforts to alleviate
the contamination. Similarly, the regulatory agencies have not
been sufficiently aggressive in taking enforcement actions
against those individuals or entities that violate water quality
laws.
THE STATE HAS TAKEN A “WAIT AND SEE” APPROACH
TO HANDLING MTBE CONTAMINATION
The State must follow a lengthy protocol when determining the
risk factors of drinking water contaminants, and inconclusive
scientific information can hinder the State’s efforts to formulate
policies for particular contaminants. Nonetheless, the State’s
Department of Health Services and the State Water Resources
Control Board (state board) had sufficient information and
opportunities to deal aggressively with MTBE contamination in
C A L I F O R N I A S T A T E A U D I T O R 15
water sources. Health Services and the state board could have
responded to available information on the potential health
effects of MTBE and the differences noted between MTBE and
BTEX when these chemicals are exposed to groundwater. Ulti-
mately, the Legislature has had to take the lead on the issues
surrounding MTBE by requiring Health Services to adopt pri-
mary and secondary drinking-water standards for MTBE and by
calling for studies on MTBE’s effect on human health, as well as
analyses of possible alternatives to its use in gasoline.
BACKGROUND
Legislation directs Health Services to adopt a primary drinking-
water standard for MTBE by July 1, 1999. Before Health Services
adopts this standard, which is the level at which a contaminant
can adversely affect public
health and for which the
State can enforce compli-
Steps the State Takes to Establish Drinking-Water Standards
ance, the Office of Envi-
OEHHA performs a risk assessment that answers these questions:
ronmental Health Hazard
• How much of the chemical could be in the drinking water? Assessment (OEHHA), part
• How much water is the average person likely to drink? of the California Environ-
• What is the likelihood that exposure to the chemical will affect mental Protection Agency
(California EPA), must
public health?
establish a public health
OEHHA determines a public health goal based upon the level of goal for the contaminant.
chemical a person could consume daily in two liters of water for Health Services established
70 years with no ill effects. The public health goal depends solely
the State’s current nonen-
upon scientific and public health considerations.
forceable interim action
level for MTBE in 1991,
Using the best available technology, Health Services evaluates the
cost to public water systems and their customers if they comply which is the amount of
with the public health goal. Health Services then compares this MTBE that researchers
cost with the health risk to the public. would not expect to ad-
versely affect the public
Based on the above, Health Services determines the level at which
health if it were present in
the chemical can be present in drinking-water supplies. This level
drinking water. Because the
then becomes a drinking-water standard for which the State may
enforce compliance. OEHHA took into account
only the noncarcinogenic
effects of MTBE, the level is
35 parts per billion (ppb);
however, in June 1998, the OEHHA proposed a public health
goal of 14 ppb for MTBE in drinking water to consider these
effects. The State will adopt a public health goal after it considers
public comments to the proposed level.
16 C A L I F O R N I A S T A T E A U D I T O R
Additionally, Health Services was required to adopt a secondary
drinking water standard by July 1, 1998. Secondary drinking-
water standards address the cosmetic effects (that is, skin or
tooth discoloration) or aesthetic changes (that is, taste, odor,
or color) that a contaminant may cause. The adoption of
Health Services’ proposed secondary maximum contaminant
level of 5 ppb is pending the Office of Administrative Law’s
review and approval process, which is scheduled for completion
by December 1998. If the State adopts this level, it will require
certain public water systems to monitor groundwater every three
years and notify Health Services and the public when MTBE
levels exceed the standard.
The State Was Late in Adopting Emergency
Regulations for Monitoring MTBE
The State was aware as early as 1990 that MTBE was affecting
drinking-water supplies when the Presidio of San Francisco
detected MTBE contamination in two of its drinking-water wells
at levels ranging from 1 to 500 ppb. Although the State had
adopted a nonenforceable interim action level of 35 ppb in
1991, Health Services did not ask certain public water systems to
voluntarily monitor for MTBE contamination until February
1996. Specifically, Health Services issued an advisory to public
water systems stating that, although it believed MTBE contami-
nation of public drinking-water supply sources to be unlikely,
some factors were cause for concern, such as the widespread use
of MTBE and the historic problem with leaking underground
storage tanks (storage tanks) containing motor vehicle fuel.
Therefore, Health Services encouraged those public water sys-
tems conducting routine chemical testing and those with drink-
ing-water wells near sites of contamination or leaking storage
tanks to commence MTBE testing in 1996. Then, in 1997, Health
Services adopted regulations requiring certain public water
systems to begin monitoring drinking-water sources for MTBE.
In light of the evidence surrounding MTBE’s impact on drink-
In light of the evidence ing-water sources that began to surface in the last decade, Health
surrounding MTBE’s Services could have responded sooner to regulate this chemical.
potential threat to California oil refiners, who in 1979 began using MTBE in gaso-
drinking-water sources, line as an octane booster and replacement for lead at a rate of 2
Health Services could to 3 percent per gallon, increased it to 11 percent to meet the
have responded sooner to 1995 federal mandates. In 1994, however, the federal Environ-
regulate this chemical. mental Protection Agency noted that MTBE could be a human
carcinogen; it would probably be highly mobile in soils, likely
C A L I F O R N I A S T A T E A U D I T O R 17
moving into groundwater; and MTBE leaked from storage tanks
could remain indefinitely in the subsoil because it may not
biodegrade.
As early as the 1980s, the Legislature required storage tank
By the end of fiscal year upgrades over concerns about the effects of leaks on drinking-
1995-96, there were water supplies, but by the end of fiscal year 1995-96, the state
approximately 7,200 board was reporting that regional boards and local agencies were
sites where storage monitoring approximately 7,200 sites where storage tanks
tanks leaked petroleum— leaked petroleum—much of it containing MTBE—into the
much of it containing groundwater. Health Services was also aware in 1995 that MTBE
MTBE—into contamination had been detected at levels ranging from 8.2 to
the groundwater. 250 ppb in seven of the City of Santa Monica’s primary drink-
ing-water wells, which were located near storage tanks.
Given the chronology of warnings described above, we believe
that Health Services had sufficient evidence on or before
February 1996 to adopt emergency regulations for MTBE instead
of simply issuing the advisory to public water systems. Under
the provisions of the State’s Safe Drinking Water Act, Health
Services may adopt an emergency regulation if it is necessary
for the immediate preservation of the public health and safety.
Emergency regulations would have been exempt from the
normal review and approval process and would have become
effective once filed with California’s Secretary of State. Further,
the regulations could have remained in effect up to 180 days,
thus affording Health Services ample time to complete the
public notice process for adopting permanent regulations.
When asked why it did not adopt regulations sooner, Health
Services stated that, although it considered adopting emergency
regulations to establish monitoring requirements for MTBE, it
concluded that the MTBE contamination identified at the City
of Santa Monica’s wells was not an emergency as defined by the
State’s Administrative Procedures Act. We disagree because this
act, like the State’s Safe Drinking Water Act, specifies that an
emergency is an event that calls for the immediate preservation
of the public health and safety.
Nonetheless, Health Services did not adopt any regulations until
February 1997, one year after its advisory. These regulations
require certain public water systems to monitor drinking-water
sources likely to be affected by MTBE. As of October 7, 1998,
4,430 public drinking-water sources have been tested at least
once for MTBE, as illustrated in Figure 2 below. MTBE has been
18 C A L I F O R N I A S T A T E A U D I T O R
identified in 61 of these sources at levels ranging from .15 to 610
ppb. Of these sources, 25 have MTBE concentrations that exceed
the proposed secondary maximum contaminant level of 5 ppb
and would cause concern about the taste, odor, or color of the
drinking water. However, for 469 sources, the water was not
analyzed for MTBE concentrations less than 5 ppb.
FIGURE 2
The Number of Water Sources Tested Increased Significantly
5000
4430
4000
3641
3000
2247
2000
In February 1997, Health Services
adopted regulations requiring
certain water systems to test for
MTBE.
1000
142
12 12 13
0
1992 1993 1994 1995 1996 1997 1998
In February 1996, Health Services
issued an advisory encouraging
certain public water systems to
Cumulative number of sources sampled at least once for MTBE.
begin MTBE testing.
Source: Department of Health Services' Water Quality Monitoring database.
Note: Data covers tests that occurred through October 7, 1998. Results include large ground and
surface water sources. The results do not, however, include small water system sources.
C A L I F O R N I A S T A T E A U D I T O R 19
LACK OF GUIDANCE FROM THE STATE CAUSES
DISPARITIES IN MTBE CLEANUP EFFORTS
The state board has been overly cautious in its decision to delay
issuing guidelines to the nine Regional Water Quality Control
Boards (regional boards) and 20 Local Oversight Program (over-
sight program) agencies responsible for cleaning up MTBE
contamination. As of November 1, 1998, the state board had not
issued any guidelines regarding the appropriate approach for
investigation or cleanup of MTBE detected in groundwater. As a
result, several regional boards and oversight program agencies
have developed their own interim guidelines or internal proce-
dures on how to manage sites affected by MTBE, and the entities
handle cases of MTBE leakage differently. Further, lack of a state
policy for MTBE cleanup may prevent regional boards and
oversight program agencies from enforcing their own guidelines.
The State Board Is Overly Cautious in Issuing MTBE Guidelines
In November 1995, the state board’s consultant, Lawrence
Livermore National Laboratory, issued a report concluding that
leaks from storage tanks did not appear to cause a pervasive
problem with domestic drinking-water supplies and that gaso-
line contamination degraded within relatively short distances
from the source. Further, the consultant recommended that the
state board use whenever possible passive cleanup methods,
A 1995 report in which
such as a variety of physical, chemical, or biological processes
the consultant did not
that, under favorable conditions, act without human interven-
address the effects of
tion to reduce contaminants in groundwater. In contrast, active
MTBE in groundwater
cleanup employs various methods to extract MTBE contamina-
received public criticism.
tion from the groundwater.
Relying on its consultant’s report, which did not address the
effects of MTBE in groundwater, the state board issued interim
guidelines to the regional boards and oversight program agen-
cies responsible for overseeing cleanup of leaking storage tanks.
The guidelines stated that, for low-risk groundwater cases, active
cleanup of some sites was not necessary as long as the contami-
nation was stable, that is, not migrating further off-site or
increasing in volume.
However, the state board’s decision received criticism from those
who believed that the consultant’s report not only minimized
20 C A L I F O R N I A S T A T E A U D I T O R
problems with leaking storage tanks, it also failed to analyze the
effects of MTBE on groundwater in response to the available
scientific information from 1995 suggesting that MTBE was
more mobile, and less likely to biodegrade. Consequently, the
state board asked the consultant to perform more research, and
issue another report addressing MTBE’s impact on groundwater
In a subsequent report, sources.
the consultant agreed
that MTBE is more mobile In a more recent report, issued in June 1998, the consultant
in water and soil and agreed that MTBE is both mobile and more difficult to remove
more difficult to remove, than benzene. Further, the consultant concluded that the state
than benzene. board can use this assumption to formulate strategies for manag-
ing groundwater sources affected by MTBE. Thus, we conclude
that a more active approach may be appropriate for MTBE
contamination.
In October 1996, the state board circulated to the regional
boards a draft policy, Investigation and Cleanup of Petroleum
Discharges to Soil and Groundwater, with more specific guidance
on cleanup of MTBE at storage tank sites. However, the state
board has deferred issuing this policy until more information on
MTBE becomes available from the University of California
studies the Legislature requested in 1997, as discussed in the
Introduction.
Boards’ and Agencies’ Guidelines and Procedures Vary
for Managing MTBE-Contaminated Sites
Meanwhile, some of the regional boards and oversight program
agencies have developed their own interim guidelines, resulting
in inconsistent standards for addressing MTBE contamination
statewide. Specifically, three of the five regional boards we
visited have different criteria for handling cases involving MTBE
contamination. Although these regional boards all consider
various site-specific factors, such as the gasoline leak’s proximity
to drinking-water sources and the water’s flow pattern, regional
boards use varying levels of MTBE concentrations to decide the
necessary course of action to manage the contamination cases.
For example, each regional board first determines the beneficial
uses of the water that MTBE may be threatening, then decides
on a course of action based on the level of contamination that
may affect drinking-water sources. One regional board pursues
cleanup, continued monitoring, or site closure, depending on
whether MTBE concentration levels exceed 200 ppb in ground-
water and whether potential drinking-water sources are within
2,000 feet of the leak source. Another regional board decides its
C A L I F O R N I A S T A T E A U D I T O R 21
course of action after it determines MTBE concentration levels in
the affected groundwater exceed 35 ppb, whether a drinking-
water well is within a one-mile radius of the leak source, and
whether benzene has also contaminated any drinking-water
well. Finally, a third regional board requests responsible parties
to clean up the contamination if the MTBE concentrations are
greater than 1,000 ppb, or to monitor the site if the MTBE levels
Regional boards and are between 10 ppb and 1,000 ppb. It will close the case if MTBE
oversight program levels are below 10 ppb. One of the remaining two regional
agencies use varying boards is currently developing guidance for staff, while the other
levels of MTBE said that due to the lack of information on how to treat MTBE, it
concentrations to decide has no written procedures for cleaning up MTBE contamination
the course of action to and is handling each case individually.
manage the
contamination. Similarly, in the absence of guidance from any state or regional
board, two of the six oversight program agencies we visited
have developed their own procedures for handling MTBE. The
remaining four oversight program agencies treat MTBE cases
as they would any other hazardous substance release. The
two oversight program agencies with procedures used varying
criteria for prioritizing, investigating, and closing MTBE cases.
One oversight program agency uses the cumulative average
of the highest concentrations of MTBE reported for six quarterly
samples from groundwater monitoring wells. Taking the result-
ing average, the oversight program agency places the case into
one of six categories with MTBE concentrations ranging from
a high of 1,000,000 ppb to as low as 20 ppb. The oversight
program agency also considers other factors, such as the site’s
proximity to nearby sources of drinking water. Staff then require
cleanup proposals from storage tank owners or operators,
starting with those cases that present the greatest threat based
on the level of contamination and proximity to existing and
future drinking-water sources.
The second oversight program agency that has developed
cleanup procedures initially screens cases, using a criterion of
200 ppb, to first determine those requiring additional investiga-
tion and cleanup. This oversight program agency has established
four categories for prioritizing cases with MTBE. Highest-priority
cases consider whether MTBE has affected a water well, as well as
the extent of contamination in the groundwater samples, and
whether the contamination could affect a drinking-water source
500 feet away. The lowest-priority cases are those sites where
MTBE concentrations are lower than 350 ppb, or where the
entities responsible for the contamination have completed their
corrective actions and the cases are awaiting closure.
22 C A L I F O R N I A S T A T E A U D I T O R
Obviously, until the state board provides an official uniform
policy for investigating and cleaning up storage tank sites af-
fected by MTBE, regional boards and agencies will continue to
issue their own interim guidelines and procedures, resulting in
inconsistencies statewide. The State’s lack of a formal position
on MTBE may also undermine the enforcement authority of
regional boards and oversight program agencies if responsible
parties ordered to clean up sites contaminated by MTBE disagree
with the overseeing authority and appeal their cases to the state
board.
THE STATE’S REGULATORY PROCESS, WHICH
ENSURES THE SAFETY OF OUR DRINKING
WATER, HAS DEFICIENCIES
The State has a flawed regulatory process for ensuring that
groundwater sources provide drinking water free of gasoline
contaminants. We found deficiencies at every step of the
regulatory process, from issuing permits to owners and
operators of storage tanks—the primary sources of gasoline
contamination—to enforcing laws designed to protect us.
The State Needs to Increase Efforts to Identify
Leaking Storage Tanks
The 1984 state law designed to address the problem of leaking
storage tanks is not producing the desired outcome, which is
In most cases, leaks are identifying leaking storage tanks and ensuring that the regional
not discovered until the boards and local agencies require the owners or operators to
tanks are removed, rather clean up leaks promptly. In a 1996 study, the state board found
than as part of an agency that leaks are not discovered until the tanks are removed, rather
monitoring program. than detected as part of an ongoing monitoring program.
Also, some tank owners have not obtained required permits.
Therefore, leaking storage tanks that responsible entities
have not identified could be contributing significantly to
groundwater contamination.
To obtain an operating permit, a storage tank owner or operator
must establish an early detection system for leaks. Monitoring
for leakage can occur in a number of ways, including gauging
the gasoline level with automatic systems, performing manual
inventory reconciliations, and testing tanks annually for leaks.
In their operating permits, tank owners must specify a monitor-
ing plan that must be approved by the local implementing
agency (implementing agency). The monitoring plan establishes
C A L I F O R N I A S T A T E A U D I T O R 23
written procedures for routine monitoring, which specify the
frequency of monitoring, the methods and equipment to be
used, a preventive maintenance schedule, and a description of
the training necessary for operation of both the tank system and
monitoring equipment. In addition, the monitoring plan is to
include the procedures that the owner or operator will follow in
removing and properly disposing of any hazardous substances.
The 1984 state law governing storage tanks required implement-
ing agencies to ensure that storage tanks within their jurisdic-
tions meet the new permit requirements. At that time, the
implementing agencies used several methods to compile an
inventory of storage tanks located within their jurisdictions.
They obtained listings from the state board and other entities
and searched for abandoned storage tanks during routine inspec-
tions. Despite these creative methods, the six implementing
agencies that we surveyed believe that they may not have
identified a number of storage tanks. Obviously, owners or
operators cannot receive permits for these unidentified storage
tanks or monitor and inspect for leaks.
Between October 1995 and May 1996, the state board conducted
a survey to determine the effectiveness of leak detection
For 289 of the 345 cases methods for underground storage tanks. It concluded that for
reviewed, leaks were 289 of the 345 cases of leaking tanks it reviewed (84 percent),
discovered during tank the leak was discovered during tank removal, not when the
removal, not because of tank owner received the original permit or during routine
monitoring. inspections. Further, the state board’s survey data validated
concerns that most of the leaking storage tanks were not consis-
tently monitored. Specifically, the state board reported that
an estimated 149 sites either were not monitored, or if they
were, the monitoring records were not in the files, and the
implementing agency did not know the monitoring history.
Additionally, the survey noted that, for those cases with avail-
able monitoring information, gaps up to 29 months long existed
between the tank owner or operator’s most recent monitoring
report and the discovery of the leak, suggesting either that tank
owners or operators are not performing sufficient leak detection
procedures or that they are not promptly reporting the results of
these procedures to the implementing agencies. Further, these
gaps indicate that the implementing agencies are not adequately
enforcing penalties for the tank owners’ or operators’ lack of
adherence to leak detection requirements. To correct these
24 C A L I F O R N I A S T A T E A U D I T O R
deficiencies, the state board recommended that the implement-
ing agencies review each tank owner or operator’s monitoring
records for accuracy and also enforce compliance with monitor-
ing and record-keeping requirements.
Similarly, some owners are not obtaining required permits to
operate their underground storage tanks. We found that for 11
of the 43 cases reviewed, groundwater contamination was
discovered upon removal of an unpermitted tank. Because the
tanks never received permits, monitoring plans did not exist.
In addition to failure on the part of the storage tank owner or
We noted that some operator to monitor for leaks, we noted that in five other cases
implementing agencies reviewed, the implementing agencies either did not prepare
either did not prepare inspection reports or the reports were deficient. For example,
inspection reports or the one inspection report failed to cite a storage tank owner who
reports were deficient. was operating without a permit. Another inspection report
indicated that the inspector had noted the presence of a moni-
toring report when, in fact, no such report existed.
The California EPA Should Improve the
Proposed Audit Process for the Unified Program
The California Environmental Protection Agency’s (California
EPA) audit process for its Unified Program needs to provide
additional assurance that State evaluators will detect deficiencies
in the permit and inspection processes for storage tanks. Because
the regulated community was confused by the myriad require-
ments for obtaining permits and inspecting hazardous waste
facilities, in 1996, the California EPA developed the Unified
Program. This program consolidates, coordinates, and standard-
izes the permit, inspection, and fee collection processes for six
existing programs regulating hazardous waste and hazardous
materials management, one of which monitors and inspects
storage tanks.
The Certified Unified Program Agencies (unified program agen-
cies) implement the Unified Program at the local level. Each
unified program agency is responsible for all six program ele-
ments of the Unified Program within its jurisdiction. Previously,
about 1,400 local agencies performed the hazardous materials
and hazardous waste regulatory activities; now 69 unified pro-
gram agencies fulfill these duties throughout the State. The
remaining local agencies that the State has not certified as
unified program agencies report to a unified program agency
within their geographical area.
C A L I F O R N I A S T A T E A U D I T O R 25
As part of this program, the California EPA will require each
unified program agency to complete a questionnaire on its
operations. For example, the unified program agency will need
to evaluate its ability to issue permits promptly, to adequately
train its inspectors, and to apply its enforcement standards
uniformly. A team of state evaluators will review these question-
naires before the team’s field audit. Once in the field, the team
may consider reviewing documents to support statements in
the unified program agency’s questionnaire. The team will
evaluate the agency’s progress toward meeting its inspection
goals and training requirements as well as the timeliness of
its enforcement actions. However, our concern is that this
We are concerned that high-level review of operations will not be able to detect the
the Unified Program’s tank owners’ or operators’ departures from leak prevention and
high-level review will not monitoring requirements. Specifically, the state evaluators are
detect departures from currently not required to review reports of releases of gasoline
state requirements. from storage tanks, although, reviews of cases involving these
leaks would prompt additional questions about their causes and
the owners’ or operators’ monitoring and inspection of the tank.
Before the establishment of the Unified Program, the state
board had a similar evaluation program for the implementing
agencies. Specifically, the state board requested that selected
implementing agencies complete a questionnaire before the
state board’s field visits. Once in the field, the state board’s
evaluators would review selected files for compliance with
the program requirements, in addition to validating the
questionnaire responses.
The Unified Program could also benefit if its own evaluators
always reviewed selected files. By analyzing the permit and
inspection information contained in the selected files, the
evaluators could have additional assurance that storage tank
program requirements are met and that owners and operators
are identifying and correcting deficiencies, such as those
described on pages 24 and 25.
THE STATE NEEDS TO MAKE CERTAIN THAT IT
RECEIVES TIMELY NOTIFICATION OF THREATS
TO DRINKING WATER
Two sources notify the State of threats to drinking water: public
water systems, which submit to Health Services analyses of
samples drawn from drinking-water sources, or storage tank
owners or operators, which inform the local agencies of releases
26 C A L I F O R N I A S T A T E A U D I T O R
of gasoline contaminants. However, these regulatory entities do
not always receive timely notification from either source about
these threats. Delays in identifying and acting upon threats to
groundwater supplies place the health of California citizens at
risk.
HEALTH SERVICES NEEDS TO ENSURE PUBLIC WATER
SYSTEMS PROMPTLY SUBMIT LAB RESULTS
Health Services does not ensure that all public water systems
required to submit lab results to the State have in fact submitted
the data from their water quality sampling. Also, because Health
Services does not require electronic reporting of sample results,
Health Services experiences delays in receiving 28 percent of the
sample results. Finally, Health Services does not include in its
database the sample results it receives from 4,600 small water
systems. Until Health Services modifies its existing policies and
procedures for tracking information on water quality monitor-
ing, the State cannot ensure that all results are available for its
timely evaluation of potential threats to drinking water.
State regulations require public water systems to collect water
samples and to submit to Health Services the results of all
sample analyses received in a calendar month no later than
the 10th day of the following month. One of several hundred
drinking water laboratories that Health Services certifies analyzes
the samples. These labs are operated either by the public
water system staff or by their contractors. The public water
systems submit lab results to Health Services electronically, on
a computer disk, or manually on a state form. Health Services’
staff then enters the results in its Water Quality Monitoring
database.
However, Health Services has weaknesses in its process for
35 percent of the water obtaining and tracking lab results submitted by the public water
analysis data from the systems. First, Health Services lacks a reconciliation process
labs surveyed did not verifying that public water systems have submitted all lab
appear in Health Services’ results. We surveyed 19 labs to determine the accuracy and
database, as required. presence of lab results in the databases for the gasoline contami-
nants BTEX and MTBE found in the drinking water of selected
public water systems. For the 14 labs responding to our survey,
we found that 35 percent of the water analysis data the labs
submitted for these public water systems did not appear in
Health Services’ database.
C A L I F O R N I A S T A T E A U D I T O R 27
Secondly, we question Health Services’ policy of allowing the
public water systems to submit water analysis results 10 days
after the month in which the systems collected the samples.
Although water sample results exceeding the maximum con-
taminant level must be reported within 48 hours to the district
offices, for the remaining water sample results, Health Services
could be unaware of contamination trends for up to 41 days,
even when the water systems have been prompt in submitting
their results.
Currently, according to Health Services, approximately 60
percent of the labs are submitting their results electronically,
and this process allows for early notification of potential threats.
However, when asked why it does not require all labs to submit
their results in this manner, Health Services stated that, al-
though some public water systems direct their labs to submit
data electronically, no statute or regulation requires them to do
so. Instead, Health Services strongly urges public water systems
and their labs to voluntarily submit their water quality data
electronically. Moreover, Health Services states that it anticipates
that future federal reporting requirements will result in all lab
data being submitted electronically. However, Health Services’
decision to wait for federal reporting requirements mandating
the electronic submission of lab results is imprudent, since
Health Services will continue to receive delayed notification of
possible threats to drinking water. Instead, Health Services
should amend its regulations to require the public water systems
to electronically submit data.
Finally, we found that Health Services does not record the water
Health Services does not sample results for approximately 4,600 small water systems.
record the water sample Currently, the local primacy agencies (primacy agencies), which
results for approximately oversee small water systems serving less than 200 service con-
4600 small water nections all year, must track analytical results for these systems
systems. and report to Health Services only those results that exceed a
maximum contaminant level. By not recording small water
system lab results in its database, Health Services has no oppor-
tunity to identify contamination trends that may affect neigh-
boring water systems. If Health Services would note a contami-
nation trend for a small water system, those responsible for
managing a nearby larger public water system could monitor for
the chemical and be alerted sooner to its migration. Further, this
information can assist Health Services’ district offices in oversee-
ing the primacy agencies by allowing the districts to track small
water system activity and identify potential problems sooner.
28 C A L I F O R N I A S T A T E A U D I T O R
In July 1998, prompted by our inquiries, Health Services estab-
lished a process by which primacy agencies voluntarily report
lab results for small water systems. When asked why the
primacy agencies are not required to submit analytical results,
Health Services again stated that it believes future federal
mandates will require states to input all sample data in databases
on drinking water. However, again Health Services’ decision to
wait for federal requirements mandating the collection of
sample results from small water systems in its database is impru-
dent. Instead, Health Services should amend its procedures to
require that all sample results be included in its databases.
Timely Notification of Gasoline Leaks Is Necessary for
Alleviating Groundwater Contamination Quickly
Storage tank owners and operators that do not promptly report
leaks to the appropriate local agencies are violating the law and
42 percent of the release putting California’s drinking water at risk. We reviewed 24
forms reviewed indicate Unauthorized Release Forms (release forms) that storage tank
the storage tank owner or owners or operators submitted to implementing agencies in
operator was slow to various locations throughout the State. For 10 of these forms
report the leakage. (42 percent), the storage tank owners or operators had known
about the releases for more than five days before reporting the
leaks to the implementing agency. This delay occurred even
though the law requires the storage tank owner or operator
to notify the implementing agency within 24 hours of an
unauthorized release, to investigate the condition, and to
immediately stop the release. Additionally, the owner or
operator must submit to the local implementing agency within
five working days a written report on a release form to capture
valuable information, such as when and how the leak was
discovered; its source; whether it affected soil, groundwater, or
drinking water; and what remedial action the owner or operator
will take. In the 24 release forms reviewed, we noted that storage
tank owner or operator reporting delays ranged from 3 days to
773 days. These delays can jeopardize the quality and safety of
the State’s drinking water.
THE STATE HAS NOT ADEQUATELY MANAGED
CASES INVOLVING CHEMICAL CONTAMINATION OF
DRINKING-WATER SOURCES AND STORAGE TANK SITES
Although Health Services and the state board have established
procedures for addressing identified instances of gasoline
contamination, our review of sample cases indicates that both
C A L I F O R N I A S T A T E A U D I T O R 29
Health Services and the state board can improve their manage-
ment of chemical contamination found in drinking-water wells
and at leaking storage tank sites.
Some District Offices and Primacy Agencies Do Not Follow
State Policies for Ensuring Water Quality
In reviewing sample cases for 39 public water systems, we
found that not all of Health Services’ district offices and not all
primacy agencies responsible for managing cases of chemical
contamination are consistently implementing established
policies and procedures. As a result, public water systems
throughout the State are subject to different monitoring and
reporting requirements. For example, one district adheres to a
unique interpretation of the maximum contaminant level for
chemicals. Specifically, the State has adopted a maximum con-
taminant level of one part per billion (ppb) for benzene. If
benzene exceeds this level, the public water system must report
the result to Health Services within 48 hours and commence
resampling once a month for six months. However, the district
has implemented a “rounding policy” where it does not con-
sider benzene detections of 1.1 to 1.4 ppb to constitute an
exception to the maximum contaminant level.
When asked why it uses this policy, the district stated that those
in the industry, including Health Services, accept this practice.
Thus, public water systems under this district’s jurisdiction
would not commence Health Services’ stringent reporting and
sampling requirements until the chemical occurs at levels of 1.5
ppb. Although Health Services permits rounding, this was the
only district out of the nine we visited that had implemented
such a policy. This policy circumvents and minimizes the impor-
tance of the maximum contaminant levels and the stringent
monitoring requirements designed to identify contamination
trends. Therefore, Health Services should discontinue this
rounding policy among its district offices.
In another case, a district failed to adhere to the established
A public water system sampling protocol for treated drinking-water sources. Chemical
did not perform analysis of the water prior to treatment, over an eight-year
monthly testing of a period ending in May 1997, showed levels of benzene in
drinking-water source for the water supply that averaged 2.6 ppb. Because these levels
over a year. exceeded the maximum contaminant level, the public water
system was required to treat the water before distributing it to
the public and to sample for chemicals monthly. However,
the public water system did not test this drinking-water source
30 C A L I F O R N I A S T A T E A U D I T O R
between May 1997 and August 1998. When asked why it had
not required the public water system to collect monthly water
samples, the district stated that it was confused about the differ-
ences in the sampling requirements for untreated and treated
water. After we raised concerns over the 14-month lapse in
testing, the district issued a letter in August 1998 requiring
monthly tests until it reevaluates the situation to determine
the degree of risk to the public’s health. In the meantime, the
district may have placed the health of the public water system’s
customers in jeopardy by not ensuring that the treated water
was free from benzene, a known human carcinogen.
Finally, in another instance, we noted that a primacy agency
chose not to comply with Health Services’ sampling require-
ments for MTBE. It stated that the public water system was not
vulnerable to MTBE because it had not detected BTEX in previ-
ous samples and in its risk assessment of the county’s drinking-
water sources. However, this noncompliance contradicts Health
Services’ direction that primacy agencies initially treat all
sources as vulnerable. Further, the absence of BTEX does not rule
out the presence of MTBE. The primacy agency has subsequently
changed its position and will test for MTBE at the next sched-
uled routine sampling for the water system.
Additionally, we found that for 9 of the 39 public water systems
we reviewed, either the district office or the primacy agency had
not performed, or had
performed incompletely,
Determining the Vulnerability of a Drinking-Water
the critical assessments
Source to Contamination
needed to determine the
If previous use of a chemical in a location is unknown, or if
vulnerability of the drink-
the chemical was used previously and the source cannot be
ing-water source to con-
designated nonvulnerable, the public water system may reduce
sampling frequency after reviewing a source’s susceptibility to taminants before the
contamination. The review must include the following: district office or primacy
• Previous monitoring results. agency reduced the sam-
• User population characteristics. pling frequency. Generally,
• Proximity to sources of contamination. unless the water system
• Surrounding land uses. can demonstrate that a
• Degree of protection of the water source.
chemical has not been
• Environmental persistence and transport of the chemical in
previously used, manufac-
water, soil, and air.
• Elevated nitrate levels at the water supply source. tured, transported, or
• Historical system operation and maintenance data, including disposed of near the
previous inspection results. drinking-water source, the
C A L I F O R N I A S T A T E A U D I T O R 31
water system must perform a vulnerability assessment every
three years to support reduced sampling. In these nine instances,
we were unable to determine justifications for reductions in the
sampling frequencies. In order for Health Services to protect
drinking-water sources adequately, it must ensure that its staff
and primacy agencies adhere to established procedures.
Late Site Assessments Have Caused Significant Delays in
the Cleanup of Gasoline Leaks
Critical to making a decision about the correct cleanup
approach is the storage tank owners’ or operators’ assessments
of the extent of the contamination and the potential effects
on surrounding areas. However, our review of sample cases
indicates that responsible parties are not completing these
assessments promptly and delaying the cleanup of contami-
nated sites.
The regional board or oversight program agency has not always
ensured that the party responsible for a contaminated site has
acted promptly to characterize the extent of the contamination
affecting groundwater. The minimum for a preliminary assess-
ment of the site includes, an initial site investigation, removal
of visible contaminants, and site characterization. The purpose
of the preliminary site assessment is to determine the extent of
existing soil contamination and its impact on groundwater.
Further, an initial site characterization includes gathering infor-
mation on the estimated quantity of the gasoline release and
obtaining data from available sources. It also includes site inves-
tigations for the surrounding populations, water quality, use
and proximity of wells potentially affected by the release, sub-
surface soil conditions, locations of subsurface utilities, water
flow conditions, and land use. Regional boards and oversight
program agencies use data collected during the preliminary site
assessment to determine whether a contaminated site has been
adequately cleaned up through initial actions or whether the
storage tank site requires more extensive investigation and
cleanup.
We found that in 41 of 43 of the cases (95 percent) we reviewed
On average, responsible that had preliminary site assessments, the responsible parties
parties took 25 months to submitted their reports an average of 25 months after the date
identify the extent of the the leak was first discovered or reported. Eighteen of the 41
contamination. responsible parties were able to submit their reports within six
months. Therefore, barring extenuating circumstances, such as
significant delays in obtaining drilling permits or substantial
32 C A L I F O R N I A S T A T E A U D I T O R
changes to proposed work plans, six months seems a reasonable
time frame for the responsible parties to submit their prelimi-
nary site assessment reports either to the regional board or
oversight program agency.
Further, for three cases, staff from the regional board or over-
sight program agency did not manage the preliminary site
assessment process well. As a result, in two cases, responsible
parties did not complete critical actions, such as removing
contaminants and excavating the soil after tank removal, for
periods of up to seven years. In a third case, the responsible
party did not perform any initial site characterization since the
party first discovered the leak in June 1988.
Like Health Services, the regional boards and oversight program
agencies must take a stronger position in requiring parties
responsible for gasoline leaks to commence preliminary assess-
ments immediately so that cleanup can begin quickly.
STATE AND LOCAL AGENCIES HAVE NOT ENFORCED
WATER QUALITY LAWS AGGRESSIVELY
We found several instances in our sample cases that suggest
the State’s regulatory agencies have not been sufficiently
aggressive in taking enforcement action against public water
systems that do not comply with sampling or public notification
requirements, or against parties that have failed to clean up
contaminated sites, as required. Timely, consistent enforcement
of the Safe Drinking Water Act and the Underground Storage
Tank laws serve to protect the public health and the environ-
ment. In addition, enforcement can serve as a deterrent to
potential violators. By not exercising their enforcement author-
ity, Health Services, the regional boards, and local agencies are
not ensuring the safety of the State’s drinking water.
PUBLIC WATER SYSTEMS HAVE NOT RECEIVED
PENALTIES FOR VIOLATING WATER QUALITY LAWS
In 7 of 39 sample cases, we found that Health Services or
primacy agencies did not sufficiently penalize public water
systems that did not comply with sampling or public notifica-
tion requirements. Because Health Services’ monitoring and
reporting procedures are the primary means by which the State
C A L I F O R N I A S T A T E A U D I T O R 33
assures that the public is receiving safe drinking water, any
significant monitoring deficiency or violation should merit an
enforcement action, such as a citation, compliance order, or
administrative hearing.
For example, a small water system serving approximately
Even though one small 42 students and staff at an elementary school was severely
water system failed to delinquent in its routine monitoring and reporting of chemicals,
test for gasoline and thus did not properly safeguard the purity of the water
contamination for almost provided to its customers. The water system last performed
10 years, the oversight an analysis of gasoline contaminants in 1989. In spite of the
agency has not yet taken extended period of time in which this small water system was
sufficient enforcement violating the drinking-water standards, the primacy agency took
action. no enforcement action until September 1997, when it issued a
compliance order requiring the small water system to submit,
within 60 days, laboratory results from chemical testing. Even
then, the primacy agency did not follow up in a timely manner:
it contacted the system 10 months later by letter stating that,
to avoid civil penalties, the system must submit the required
water samples within 30 days. In response to our inquiry
regarding this situation, the primacy agency submitted to us, in
September 1998, an action plan explaining its intent to call an
administrative hearing for the school officials to explain their
failure to perform required water sampling.
In another case, in June 1997 a large water district serving
approximately 11,000 people detected benzene in one of
the district’s five wells in concentrations exceeding the
drinking-water standard. In July 1997, Health Services issued a
compliance order requiring the water district to take several
actions, one of which was quarterly notification to the water
district that water quality had declined and that the water could
have adverse health effects. Although the water district issued
the first two quarterly notices, it did not issue all of the public
notices required because it mistakenly believed it did not use
enough water from this well to warrant the notification. After
we inquired why the public notices stopped, the appropriate
Health Services’ district office contacted the water district, which
subsequently issued another public notice on August 28, 1998.
Three days later, the water district shut down the well. Neverthe-
less, for a period of 10 months, this water district had not
informed customers of the threat to their drinking water,
and it therefore denied customers the right to weigh all their
alternatives to using the contaminated water. According to the
34 C A L I F O R N I A S T A T E A U D I T O R
district office, it did not pursue enforcement because it felt that
contacting the water district and requiring issuance of notice in
August 1998 were sufficient.
OWNERS AND OPERATORS RESPONSIBLE FOR
CLEANING UP CONTAMINATED SITES HAVE VIOLATED
WATER QUALITY LAWS
Of the 43 cases that we reviewed involving gasoline contamina-
tion of water, we believe that seven warranted enforcement
action. For these seven cases, the regional boards or local over-
sight program agencies did not aggressively exercise their en-
forcement authority to bring the responsible parties into compli-
ance with water quality laws, and took as long as 10 years to
penalize responsible parties for delaying such critical activities as
the removal of contaminants, site investigations, and submis-
sion of technical reports.
When contamination from an unauthorized gasoline release
has been identified, the responsible party is required to
remove visible contaminants, conduct site assessments, and
submit to the local agency or regional board overseeing the
cleanup quarterly status reports about the investigation and
cleanup activities. When responsible parties do not fulfill these
obligations, regional boards can take a series of steps to enforce
regulations. First, the appropriate regional board may issue a
time-schedule order, which requires the responsible party to take
certain actions within a given time frame. The board may also
issue a cleanup order requiring immediate alleviation of the
contamination. Further, the regional board can assess a mon-
etary penalty, or administrative civil liability. Finally, regional
boards can refer responsible parties to the State’s Office of the
Attorney General (attorney general) or to the local district
attorney for enforcement through the courts.
In one of the seven cases in which adequate enforcement did
The oversight program not occur, the oversight program agency was overly tolerant of
agency was overly the responsible party’s delays in cleaning up significant levels of
tolerant of the benzene at a contaminated site, which moved from the leak
responsible party’s delays source toward neighboring businesses and homes. In December
in cleaning up significant 1989, a storage tank owner had removed four storage tanks from
levels of benzene at a a site after laboratory results indicated that the groundwater
contaminated site. beneath the site was contaminated. A preliminary site assess-
ment report indicated that gasoline contaminants could con-
tinue to be a problem, especially because utility lines were
C A L I F O R N I A S T A T E A U D I T O R 35
nearby and because of speculation that neighboring properties’
soil and groundwater had also become contaminated. The report
further noted that the investigation of the site was not yet
complete. In October 1990, the regional board issued a cleanup
order with a deadline of June 30, 1992. However, when the
responsible party did not meet this deadline, the regional
board did not follow up on its order. Violations of cleanup
orders should trigger a more serious enforcement action, such as
assessing an administrative civil liability or referring the case to
the attorney general.
In accordance with the contract terms of the state board’s local
oversight program, the oversight program agency described
above sought guidance through the regional board, which issued
the cleanup order in 1990. However, when asked why it had
not pursued enforcement actions when the responsible party
did not meet cleanup order requirements, the regional board
stated, among other things, that it has devoted limited staff
resources to the management of leaking storage tanks, partly
because resources available to the oversight program agency
have exceeded those of the regional board. Still, limited staff
resources should not preclude the regional boards from
assisting the oversight program agencies with their regulatory
responsibilities.
Given the lack of follow-up enforcement by the regional
Enforcement actions board, the oversight program agency subsequently issued an
by both the regional order in October 1992, which required the responsible party to
board and the oversight submit a corrective action plan by June 1, 1993. Then, in 1994,
program agency have the responsible party finally prepared a work plan for a prelimi-
failed to compel cleanup nary site assessment, suggesting it planned to clean up the
of a contaminated site. contamination. However, for the past four years, the responsible
party has not performed any cleanup activities. Despite the
responsible party’s unresponsiveness, the oversight program
agency did not commence further enforcement action until
September 1997. When we asked the oversight program agency
why it did not take action sooner, the agency stated that, by the
end of 1997, it was clear that the responsible party would never
submit the final work plan for cleaning up the contamination.
As late as November 9, 1998, the oversight program agency still
had not moved forward with any enforcement actions. Instead,
this agency stated that it has deferred action on this case because
other cases have higher priority, and it believes prosecuting the
responsible party would be time-consuming. Nevertheless, the
fact remains that no one has yet fully determined the extent of
the contamination, and cleanup has not occurred.
36 C A L I F O R N I A S T A T E A U D I T O R
For the remaining six cases involving insufficient enforcement,
because these boards or agencies were overly sensitive to legal
disputes between current and former property owners, or to the
responsible party’s lack of funds for cleanup, they did not take
enforcement actions against responsible parties that either failed
to follow through on corrective action or delayed submitting
requested information. In order to ensure consistent enforce-
ment of the State’s water quality laws, the regional boards and
oversight program agencies must instead adhere to their estab-
lished enforcement policies, which call for continuous follow-up
on earlier enforcement steps and escalation of enforcement
efforts, when it becomes clear that responsible parties are not
fulfilling their obligations to clean up contaminated sites.
RECOMMENDATIONS
Because several regulatory entities help to ensure that the State’s
drinking water from groundwater sources is free from chemical
contaminants, the following recommendations address the
various entities that have roles in this process.
The California Environmental Protection Agency
To locate storage tanks without permits and that may contribute
to contamination affecting drinking-water supplies, the Califor-
nia EPA should require the unified program agencies to increase
their efforts to identify these storage tanks and should monitor
the Unified Program’s progress. Further, when evaluating the
Unified Program, the California EPA should modify its existing
procedures to include a review of cases involving leaking storage
tanks and to determine whether the unified program agencies
are adhering to established procedures.
The Department of Health Services
To ensure that public water systems promptly notify the State
about threats to drinking-water supplies from public water
systems and that the district offices and primacy agencies prop-
erly manage these threats, Health Services should take the
following actions:
• Establish a process that will reconcile Health Services’ infor-
mation with that of the public water systems so that Health
Services can verify it has received all sample results.
C A L I F O R N I A S T A T E A U D I T O R 37
• Amend its regulations to require the electronic submission of
laboratory results from either the public water systems or their
contracted labs. In addition, electronically submitted lab
results should be a condition of the laboratory certification
process. The water systems and the laboratories should submit
lab results to Health Services within a reasonable time, such as
five days, after they have completed the analysis.
• Require its primacy agencies to report all water sample results
from the small water systems so that Health Services can enter
the results into its database.
• Make certain that its staff and local primacy agencies are
aware of, and adhere to, established monitoring and reporting
procedures for managing chemicals found in drinking water.
Further, Health Services should no longer permit its staff to
round off the numbers for maximum contaminant levels
when determining whether a chemical has exceeded these
levels and whether more stringent monitoring is required.
• Confirm that vulnerability assessments supporting reductions
in the sampling frequency of water systems occur every three
years and that staff document the evaluation of all criteria
before granting these reductions.
To better ensure consistent enforcement of the State’s water
quality laws, Health Services should follow those key provisions
of its existing policies and follow-up on all enforcement actions.
When it becomes clear that a public water system is not cooper-
ating with initial enforcement actions, Health Services should
promptly escalate its actions.
The State Water Resources Control Board, the Regional
Water Quality Control Boards, and the Local Agencies
To make certain that the State receives timely notification of
threats to drinking water from storage tank owners and opera-
tors, and to improve the management of contaminated sites,
local agencies, the state board, and the regional boards should
take the following steps:
• Local agencies should use their existing enforcement author-
ity to penalize storage tank owners or operators that delay
reporting storage tank leaks.
38 C A L I F O R N I A S T A T E A U D I T O R
• The state board should issue guidelines to the regional boards
and oversight program agencies regarding consistently inves-
tigating and cleaning up MTBE detected in groundwater.
• For each contaminated site, the regional boards and oversight
program agencies should closely monitor the submission of
preliminary assessment reports by establishing case manage-
ment tracking tools and performing timely follow-up when
the appropriate boards or agencies do not receive the required
information.
To better ensure the consistent enforcement of the State’s water
quality laws, the regional boards and the local agencies should
follow key provisions of their existing enforcement policies that
call for continuous follow-up on enforcement actions. If it
becomes clear that a responsible party is not cooperating with
initial enforcement actions, the appropriate board or agency
should take a more stringent enforcement step. n
C A L I F O R N I A S T A T E A U D I T O R 39
Blank page inserted for reproduction purposes only.
40 C A L I F O R N I A S T A T E A U D I T O R
CHAPTER 2
The State’s Regulatory Agencies
Need to Share Information About
Water Quality Problems More
Effectively
CHAPTER SUMMARY
T
he State’s designated regulatory entities do not always
communicate effectively among themselves about gaso-
line contaminants in drinking water. As a result, the
Department of Health Services (Health Services) may not receive
prompt notification about contamination migrating towards
drinking-water sources. Likewise, the State Water Resources
Control Board (state board) and the Regional Water Quality
Control Boards (regional boards) may not always receive timely
notice that a leaking underground storage tank (storage tank)
has affected a drinking-water supply.
Additionally, both Health Services and the state board are
developing mapping databases known as geographical informa-
tion systems (GIS), so regulatory agencies and the public can
access information on drinking-water sources and potential
contamination sites. However, because both agencies are work-
ing on GIS projects that will yield similar results, they are dupli-
cating efforts and costs. Furthermore, although the Legislature
requested the state board to lead the State’s GIS project, Health
Services should lead the effort instead because this database is
key to Health Services’ federally mandated assessment of risk to
drinking-water sources from potential contaminating activities,
such as leaking storage tanks and pipelines. Finally, before the
GIS can be functional, the State must substantially improve
databases on water quality and potential contaminating activi-
ties, such as leaking storage tanks.
C A L I F O R N I A S T A T E A U D I T O R 41
REGULATORY AGENCIES DO NOT ALWAYS
COMMUNICATE TO EACH OTHER ABOUT
SIGNIFICANT WATER QUALITY PROBLEMS
To address drinking-water contamination quickly and effec-
tively, the State must modify its existing practices for regulatory
agencies to alert each other about gasoline leaks. Gasoline
contaminants, more recently methyl tertiary-butyl ether (MTBE),
have been responsible for the closure of numerous drinking-
water wells. We examined documentation identifying the
communication among those responsible for managing affected
drinking-water supplies of Santa Monica, the Great Oaks Water
Company in San Jose, and Sacramento’s Fruitridge Vista Water
Company and found that, in the several instances we reviewed,
Health Services, the regional boards, and local agencies have
failed to share information about contaminated wells or leaking
storage tanks.
Ineffective Communication Delayed
Contamination Notification and Cleanup
The lack of communication between Health Services and one
The lack of communication regional board contributed to a nine-month delay in the board’s
between Health Services investigation of gasoline contamination affecting at least 50
and one regional board percent of Santa Monica’s drinking-water supply. In August
contributed to a nine-month 1995, the city detected MTBE in its Arcadia and Charnock wells
delay in investigating MTBE at levels that exceeded the State’s interim action level for MTBE
contamination in Santa of 35 parts per billion (ppb), that is, the level at which MTBE is
Monica. not expected to adversely affect the public if found in drinking
water. According to Health Services, on November 2, 1995, it
received Santa Monica’s annual monitoring results, which
identified the presence of MTBE. However, Health Services states
that it did not have the enforcement authority to require addi-
tional monitoring of MTBE or well closure because, as discussed
on page 16 of this report, the State cannot enforce its interim
action level for MTBE. Nonetheless, the city continued to moni-
tor these wells on its own for the presence of MTBE, confirmed
the initial detections, and notified Health Services of its findings
on December 7, 1995.
According to Health Services, it initially asked Santa Monica to
investigate the source of the contamination and to implement
corrective measures at the contaminated sites identified during
an annual inspection in August 1995. However, Health Services
believes that due to the public’s reaction to MTBE in the drink-
ing-water supply, Santa Monica chose instead to remove the
42 C A L I F O R N I A S T A T E A U D I T O R
wells from service. Ultimately, the city, not Health Services,
contacted the regional board in May 1996 to initiate the
investigation.
Early Detection of Contaminated Drinking Water
Allowed Prompt Cleanup Efforts
In contrast to the delayed investigation and cleanup of the
contaminated sites affecting Santa Monica’s wells, quick
responses to early warnings of MTBE contamination have
prevented the contaminants from further endangering
drinking-water supplies at other locations.
First, we found that the Great Oaks Water Company in San Jose
identified MTBE in one well at a concentration level of 1.5 ppb
in November 1997. A month later, the company confirmed
concentrations of 1.6 ppb. Although Health Services requires
public water systems to report all sample results, we were unable
to locate these sample results in its database. Rather, we found
that in January 1998, the Great Oaks Water Company sought
guidance from its water wholesaler, the Santa Clara Valley Water
District, which participates in the state board’s Local Oversight
Program. As a result of its participation in this program, the
water district has the authority to oversee groundwater cases and
was able to investigate immediately the source of the contami-
nation and identify two potential responsible parties. Efforts to
address the contamination began in February 1998.
Similarly, Sacramento’s Fruitridge Vista Water Company re-
Ideally Health Services ported to Health Services in January 1998 MTBE concentrations
should have notified a of 14 ppb in one of its wells. When the appropriate regional
regional board of an MTBE- board became aware of the affected well in May 1998, it took
contaminated site; however, responsibility for investigating the source of the contamination.
the regional board learned As in Santa Monica’s case, Health Services did not require addi-
of the site from a newspaper tional monitoring because MTBE is an unregulated chemical.
article. Further, Health Services acknowledges that it lacks a formal
process to communicate to the regional boards about detections
of chemical contaminants in water supplies. Nevertheless, the
regional board, after reading a May 1998 newspaper article on
drinking-water wells affected by MTBE, requested samples at the
company’s well and confirmed the presence of MTBE at 20 ppb.
In May 1998, the regional board began an investigation identify-
ing five storage tank owners or operators that could be respon-
sible for the contamination. Additionally, the regional board has
C A L I F O R N I A S T A T E A U D I T O R 43
assisted the water company in applying for its reimbursement
from the state board’s Underground Storage Tank Cleanup Fund
to install a new well.
THE STATE SHOULD COORDINATE EFFORTS TO
ESTABLISH A GEOGRAPHIC MAPPING SYSTEM
To assess risks to drinking-water sources, the State plans to
establish a geographic information system (GIS); however, the
State will unnecessarily duplicate efforts and costs for the project
because both Health Services and the state board are working
on mapping systems that will yield similar results. A database
displaying environmental geographic data, the GIS will
allow the State’s regulatory agencies and the public to access
information on the location of drinking-water sources and any
surrounding activity that could contaminate these sources.
In 1997, legislation was enacted requiring the state board to
create pilot projects along with two local agencies, in part to
work out the details for a GIS that will aid in protecting drink-
ing-water sources. Further, by July 1, 1999, the state board will
report to the Legislature on the feasibility and appropriateness
of establishing such a mapping system.
However, we found that as a result of a 1996 federal mandate,
Health Services is also developing a GIS to support the State’s
federally mandated Drinking Water Source Assessment and
Protection Program. Under this program, the State must identify
drinking-water sources and delineate adjacent protection, or
capture, areas and zones. Then, the State must identify any
activities within each protection area or zone that could be
origins of significant contamination. Using this information, the
State must perform a vulnerability assessment for each drinking-
water source. Health Services believes that its final GIS will fulfill
these federal requirements because it will include drinking-water
source locations, protection areas and zones, and possible con-
taminating activities. Health Services believes that it will make
the GIS available for public viewing, querying, and printing as
early as the year 2000.
Health Services estimates that it will spend approximately
$500,000 on its GIS, and the Legislature has allocated $400,000
to the state board for its mapping project. The ultimate goal of
protecting the State’s drinking-water supplies is the same for the
respective GIS projects. To eliminate the duplication of efforts
44 C A L I F O R N I A S T A T E A U D I T O R
and costs, the two sponsoring agencies should orchestrate and
Although Health Services integrate their efforts. Thus far, the communication between
and the state board are Health Services and the state board has been limited. Therefore,
developing similar mapping we are concerned that the State will spend an estimated
projects, thus far the $900,000, and these two agencies will spend much effort on
communication between mapping projects designed to meet their individual needs, rather
them has been limited. than developing one GIS that can meet all of the State’s needs.
To prevent unnecessary expenditures of time, efforts, and funds,
Health Services, not the state board, should take the responsibil-
ity for establishing and maintaining the State’s GIS because
the GIS will assist Health Services in assessing the risk of con-
tamination to approximately 16,000 drinking-water sources and
accomplish the goals of its federally mandated Drinking Water
Source Assessment and Protection Program.
EXISTING DATABASES REQUIRE SUBSTANTIAL
IMPROVEMENTS BEFORE THE GIS CAN FUNCTION
EFFECTIVELY
To ensure the success of its Drinking Water Source Assessment
and Protection Program, the State needs to improve its existing
databases so that the information transferred to Health Services’
future GIS is accurate. An important element to success is Health
Services’ ability to incorporate accurate information about
possible contamination from sources, such as mines, dairies,
leaking storage tanks, and pesticides, into the mapping system.
Therefore, each regulatory agency responsible for managing
potential hazards to drinking-water sources must ensure the
accuracy of its information and that Health Services can easily
integrate this data into the GIS. These regulatory agencies
include the State’s departments of Toxic Substances Control,
Pesticide Regulation, Food and Agriculture, as well as the
regional boards, the Office of the State Fire Marshal, and the
Integrated Waste Management Board.
During this audit, we found significant weaknesses in the
existing database for tracking threats to drinking water from
leaking storage tanks, the state board’s Leaking Underground
Storage Tank Information System (LUSTIS). This database does
not always provide accurate or complete information because
over the years, the regional boards and some local agencies have
omitted, changed, or deleted leak and cleanup information that
C A L I F O R N I A S T A T E A U D I T O R 45
the state board needs if it is to provide reliable data on the
number of leaking underground storage tanks and the status of
the State’s cleanup efforts.
The state board’s Office of Statewide Consistency (office) re-
cently conducted audits for eight of the nine regional boards,
that included a review of the LUSTIS database. The office
identified inaccuracies in several reporting fields and in the
information submitted by the local agencies to the regional
boards. In addition, the office found cases that the system was
not tracking. The office recommended that the regional boards
correct all inaccuracies noted and overhaul their data entry
and validation procedures. Furthermore, the regional boards
were not reconciling their data with local implementing and
oversight program agencies’ data before the state board entered
the data into the LUSTIS. When asked about the lack of recon-
ciliation, the state board acknowledged such a reconciliation
should take place and agreed to complete one by April 1999 and
each April thereafter.
As part of the GIS provisions of the 1997 legislation discussed
Before upgrading the above, the state board is beginning to upgrade the LUSTIS by
database, the state board obtaining locations of drinking-water wells, coordinating with
should first focus on the two local agencies in its pilot studies to locate all under-
correcting the existing ground storage tanks and those with known leaks, and coordi-
deficiencies. nating with the Office of the State Fire Marshal (Fire Marshal)
to enter into the database the locations of pipelines transporting
motor vehicle fuel and their history of leaks. However, before
upgrading the database, the state board should focus first on
correcting the existing deficiencies in the LUSTIS that we discuss
above, so that it will contain accurate data.
Finally, although the Legislature has required the state board to
identify drinking-water wells and pipelines for its GIS project,
the State can obtain this information in other ways. Specifically,
once completed, Health Services’ GIS will identify the State’s
drinking-water sources. Further, legislation already requires the
Fire Marshal to develop a comprehensive database, compatible
with GIS mapping, of each pipeline’s location, age, and history
of leaks and inspections.
46 C A L I F O R N I A S T A T E A U D I T O R
RECOMMENDATIONS
To ensure that regulatory agencies are sharing information about
drinking-water contamination, each regulatory entity should
modify its existing practices and promptly communicate key
information to other regulatory agencies. For example, Health
Services could notify other regulatory agencies when a contami-
nant in a public water system reaches reportable levels. Likewise,
the regional boards’ notification process could begin when a
storage tank owner or operator’s preliminary assessment indi-
cates that a contaminated site may imperil drinking-water
sources.
Further, to establish a cost-effective and comprehensive geo-
graphical information system (GIS), the following actions
should take place:
• The California Environmental Protection Agency should
transfer to the Health and Welfare Agency, the agency where
Health Services resides, the primary responsibility for estab-
lishing and maintaining this mapping system.
• To assist Health Services in its Drinking Water Source Assess-
ment and Protection Program, as well as in the development
of the GIS, all remaining regulatory entities responsible for
managing potential hazards to drinking-water supplies must
compile inventories of all possible contaminating sources. The
inventories should list the locations of mines, landfills, and
pesticide users in a format that Health Services can easily
integrate into the GIS.
• Health Services should work cooperatively with the state
board to make the best use of the information that both
agencies have already gathered.
• The state board should focus on correcting the weaknesses in
the Leaking Underground Storage Tank Information System
(LUSTIS) before it upgrades this database to help ensure that
the LUSTIS contains accurate information on the locations of
storage tanks and identified gasoline leaks, and that Health
Services can easily integrate this data into the GIS.
C A L I F O R N I A S T A T E A U D I T O R 47
We conducted this review under the authority vested in the California State Auditor by
Section 8543 et seq. of the California Government Code and according to generally accepted
governmental auditing standards. We limited our review to those areas specified in the audit
scope section of this report.
Respectfully submitted,
KURT R. SJOBERG
State Auditor
Date: December 17, 1998
Staff: Steven M. Hendrickson, Audit Principal
Joanne Quarles, CPA
DeLynne Cheney
Jacque Conway, CPA
Arn Gittleman, CPA
Robert Hughes
Claire J. Hur
T. Gregory Saul, CPA
48 C A L I F O R N I A S T A T E A U D I T O R
APPENDIX
Public water systems provide water for human consumption
through pipes or other constructed conveyances. The following
is an overview of the various public water system classifications
established by the State’s Safe Drinking Water Act.
Public Water Systems
Community Water System A community water system is a public
water system serving at least 15 service
connections used year-round by
residents or regularly serving at least 25
year-round residents.
Within this category, the law further
classifies as small water system those
community water systems serving from
15 to 199 service connections used
yearlong by residents or those regularly
serving at least 25 year-round residents.
Noncommunity Water System Nontransient-Noncommunity
Water System
A nontransient-noncommunity
water system, such as a school,
labor camp, institution, or place of
employment, is a public water
system that is not a community
water system and regularly serves
at least 25 of the same persons over
six months per year.
Transient-Noncommunity
Water System
A transient-noncommunity water
system, such as a school, labor
camp, institution, or place of
employment is a public water
system that is not a community
water system and that does not
regularly serve at least 25 of the
same persons over six months
per year.
State Small Water System A public water system serving at
least 5, but not more than 14,
service connections and does not
regularly serve more than 25 people
daily for more than 60 days out of
the year.
C A L I F O R N I A S T A T E A U D I T O R 49
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50 C A L I F O R N I A S T A T E A U D I T O R
Agency’s response to the report provided as text only:
California Environmental Protection Agency
555 Capitol mall, Suite 525
Sacramento, California 95814
December 10, 1998
Mr. Kurt R. Sjoberg
California State Auditor
555 Capitol Mall, Suite 300
Sacramento, California 95814
Thank you for the opportunity to review and comment on the California
Environmental Protection Agency (Cal/EPA) draft report prepared by your office entitled
“California’s Drinking Water.” Cal/EPA and the State Water Resources Control Board
(SWRCB) have reviewed this draft, and the SWRCB comments from Mr. Walt Pettit,
Executive Director, SWRCB, are attached.
I support Mr. Pettit’s comments concerning the need for continued improvement in
the effectiveness of the Underground Tank Storage (UST) program. I would add that the
audit report should also recognize the many accomplishments of the program since 1984,
specifically including the creation of the States Unified Hazardous Materials Management
Regulatory Program (Unified Program) in 1993. The Unified Program has had a
significant impact on the quality of program implementation for all of the environmental
programs it affects, including the Underground Storage Tank Program. Today, we have 69
agencies certified as Certified Unified Program Agencies (CUPA’s) that provide regulatory
oversight for 98% of the businesses in California under the Unified Program. These
CUPA’s have significantly increased environmental regulatory capabilities statewide and
have specifically enhanced the effectiveness of the UST program.
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One of the new requirements for a jurisdiction to become a CUPA was the submittal of an
application that ensured a program would operate with qualified personnel and an
adequate commitment of resources. The placement of these requirements on jurisdictions,
along with the routine evaluation of the programs by CAL/EPA evaluation teams, has
significantly increased the effectiveness of the program statewide. In addition, to assure
the continued improvement of the Unified Program, a Unified Program Administration and
Advisory Group (UPAAG) composed of representatives from the CUPA’s and State
agencies, has been created.
Your report introduces and defines the role of the Unified Program and CUPA’s on page
37. I recommend that this program description be expanded to include some of the
information provided above and moved to the “Background” section at the beginning of the
report. A better description of the program’s accomplishments up front will more fairly
portray the rising standards of program implementation.
Thank you again for the opportunity to comment on your draft report. If you have any
questions regarding these comments or the Unified Program, please contact me at (916)
445-3846.
Sincerely,
Signed by:
Peter M. Rooney
Secretary for Environmental Protection
Kurt R. Sjoberg
December 10, 1998
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Agency’s response to the report provided as text only:
State Water Resources Control Board
901 P Street
Sacramento, California 95814
TO: Peter Rooney
Secretary for Environmental Protection
California Environmental Protection Agency
FROM: Walt Pettit
Executive Director
EXECUTIVE OFFICE
DATE: December 9, 1998
SUBJECT: RESPONSE COMMENTS TO THE BUREAU OF STATE AUDITS’ DRAFT
REPORT ON CALIFORNIA’S DRINKING WATER
State Water Resources Control Board (State Board) staff have reviewed the confidential draft
Bureau of State Audits (BSA) report entitled “California’s Drinking Water: Agencies Need to
Provide Leadership to Address Contamination of Groundwater by Gasoline Components and
Additives”, dated December 1998. Our comments address recommendations pertaining to
State Board and Regional Water Quality Control Board (Regional Board) activities. They do
not address recommendations made by BSA to the Department of Health Services. We
generally concur with the recommendations of the report, and suggest the following comments
and responses:
GENERAL
We acknowledge that UST releases containing MTBE represent a significant threat to
California’s groundwater resources. The addition of MTBE to gasoline sold in California places
new emphasis on the need for a more effective underground storage tank leak prevention
program and timely investigation and cleanup of releases from underground tanks, particularly
if MTBE or other non-BTEX components continue to be used.
While we agree that there is need for improvements in program effectiveness, the audit report
should recognize the accomplishments over the past fourteen years of the agencies that
actually implement the program — 107 local permitting agencies, 20 local oversight program
contractors and 9 regional boards. Local agencies have overseen the removal of over 90,000
old tanks, and the number of locations at which tanks operate has dropped from approximately
60,000 in 1984 to about 22,000 today. This fact in itself has greatly reduced the number of
sources that pose a risk of groundwater contamination. In addition, we note that Regional
Boards and local agencies have completed work on over half of the 32,000 releases reported
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to date, and that the ability to address the remaining and newly reported cases has improved
dramatically during the past six years due to the availability of funds from the UST Cleanup
Fund.
Given that the randomly selected cases reviewed by BSA constituted about 0.2% of the total
caseload, caution should be used in extrapolating any conclusions to the universe of sites
described above.
RESPONSES TO RECOMMENDATIONS
BSA Recommendation: To locate storage tanks that do not have permits and that may
contribute to contamination affecting drinking water supplies, the California EPA should require
the unified program agencies to increase their efforts to identify these storage tanks and
monitor the unified program progress.
Response: We believe that the great majority of unpermitted tanks have been discovered and
removed during the past fourteen years. However, we will discuss this subject with local
agencies during future unified program coordination meetings and encourage sharing of ideas
on ways to find any remaining unpermitted tanks. We will follow-up periodically to monitor
progress on identifying these tanks.
BSA Recommendation: When evaluating the unified program agencies, California EPA
should modify its existing procedures to include a review of cases involving leaking storage
tanks and to determine whether the unified program agencies are adhering to established
procedures.
Response: We have established an interagency team to address issues associated with the
CUPA evaluation process. We will propose adding a review of leaking UST cases to the
process at a future meeting.
BSA Recommendation: Local agencies should use their existing enforcement authority to
penalize storage tank owners or operators that delay reporting storage tank leaks.
Response: We agree that release reporting and initial response is key to achieving the water
quality protection goals of the UST regulatory program. We will provide a copy of the audit
report to all local permitting agencies, and work with them to evaluate the causes and nature of
reporting delays and to develop a plan for improving the release reporting timeframe and
establishing an appropriate enforcement strategy.
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BSA Recommendation: The State Board should issue guidance to the Regional Boards and
oversight program agencies regarding the appropriate approach for investigating and cleaning
up MTBE detected in groundwater.
Response: MTBE poses a significant challenge to water quality management, and we agree
that there is a need for a consistent approach to investigating and cleaning up MTBE. The
recent completion of reports by University of California, California Energy Commission, et al.
will provide definitive peer reviewed information needed to develop guidance. We will proceed
with developing a statewide policy on this subject.
BSA Recommendation: For each contaminated site, the Regional Boards and oversight
program agencies should closely monitor the submission of preliminary assessment reports by
establishing case management tracking tools and performing timely follow-up when the
appropriate boards or agencies do not receive the information.
Response: We agree that once a release is reported the preliminary assessment should be
conducted as soon as possible to allow the regulatory agency to establish the relative urgency
of the case. This is especially true in cases involving MTBE. We will work with the regional
boards and local agencies to develop a target timeframe for completion and review of
preliminary assessments at newly reported cases and a method for tracking and evaluating
whether this target is being achieved.
BSA Recommendation: To better ensure the consistent enforcement of the state’s water
quality laws, the Regional Boards and the local agencies should follow key provisions of their
existing enforcement policies that call for continuous follow-up on enforcement actions. The
boards and agencies need to assess whether the initial enforcement is producing the desired
result. If it becomes clear that a responsible party is not cooperating with initial enforcement
actions, the appropriate board or agency should take a more stringent enforcement step.
Response: We agree that enforcement should be continuous and progressive as needed to
achieve the desired outcome. Improved compliance and enforcement has been a significant
theme for the State and Regional Boards, especially over the last two years as 29 positions
have been added to our overall budget for that purpose. We will work with the regulatory
agencies to ensure that the existing policies are understood, and that roadblocks to timely
enforcement are identified and addressed as appropriate.
BSA Recommendation: To ensure that regulatory agencies are sharing information about
drinking water contamination, each regulatory entity should modify its existing practices and
determine a critical point in which it will communicate key information to other agencies. The
Regional Boards’ notification process could begin when the preliminary assessment of the
R-5
contaminated site prepared by the storage tank owner or operator indicates that drinking water
sources are in the vicinity of a gasoline leak.
Response: In response to AB 592 and SB 1189 (statutes of 1997) each Regional Board is
now providing on a quarterly basis to all public water system operators within the region a list of
discharges of MTBE that occurred during the quarter and a list of locations where MTBE was
detected in the groundwater. This notification is based on initial sampling following storage
tank excavation and provides information to public water system operators earlier than
completion of the initial site assessment.
BSA Recommendation: To establish a cost-effective and comprehensive geographical
information system (GIS), the following actions should take place:
1. The California Environmental Protection Agency should transfer to the Health and Welfare
Agency the responsibility for establishing and maintaining this mapping system.
Response: AB 592 and SB 1189 (statutes of 1997) require the State Board to conduct a pilot
study and by July 1, 1999 to report to the Legislature and the Governor on the feasibility and
appropriateness of establishing a statewide GIS mapping system that will provide the
appropriate information to allow agencies to better protect drinking water wells . The State
Board will complete this task. It would then be appropriate for the Health and Welfare Agency
(Department of Health Services) to take the lead in ensuring that a statewide GIS mapping
system provides necessary information to protect drinking water wells. The State Board needs
to ensure that a statewide GIS mapping system provides necessary information to manage the
cleanup of storage tank release sites. The State Board and the Department of Health Services
will work cooperatively to ensure that duplication of effort is avoided and that the efforts of both
agencies are complementary.
2. To assist Health Services in its Drinking Water Source Assessment and Protection program
as well as the development of the GIS, all remaining regulatory entities responsible for
managing potential hazards to drinking-water supplies must compile inventories of their
respective possible contaminating sources. The inventories should list the locations of
mines, landfills, and pesticide users and should appear in a format that the GIS can easily
integrate.
Response: Cal/EPA boards and departments will work cooperatively with the Department of
Health Services to provide the locations of possible contaminating sources into a GIS format.
3. Health Services should work cooperatively with the State Board to make the best use of the
information that both agencies have already gathered.
R-6
Response: The State Board and Department of Health Services staff are now working
cooperatively to achieve this goal.
4. The State Board should focus on correcting the weaknesses in the Leaking Underground
Storage Tank Information System (LUSTIS) before it upgrades this database. Fixing these
weaknesses will help ensure that the LUSTIS contains accurate information on the
locations of storage tanks and identified gasoline leaks and that the GIS can easily
integrate this data.
Response: The State Board recognizes the need to correct the deficiencies in LUSTIS and to
address new needs, such as tracking MTBE releases and establishing GIS compatibility, and
has established a process to develop a workplan and timeline for achieving these goals.
Thank you for the opportunity to comment.
cc: Edward C. Anton, Chief
Division of Clean Water Programs
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Agency’s response to the report provided as text only:
Department of Health Services
714/744 P Street
P.O. Box 942732
Sacramento, California 942344-7320
December 9, 1998
Mr. Kurt R. Sjoberg
State Auditor
Bureau of State Audits
555 Capitol mall, Suite 300
Sacramento, California 95814
Dear Mr. Sjoberg:
We have reviewed the draft report entitled “California’s Drinking Water: State and
Local Agencies Need to Provide Leadership to Address Contamination of Groundwater by
Gasoline Components and Additives,” and provided the enclosed responses. We
appreciate the professionalism of your staff in preparing the report.
Should you have any questions about the responses, please call me at (916) 322-
2308.
Sincerely,
Signed by:
David P. Spath, Ph.D., P.E., Chief
Division of Drinking Water and
Environmental Management
The department attached to this response a copy of a 1990 compliance order issued to the
United States Army, Presidio of San Francisco as stated on page R-10. We have not included
this attachment, however, a copy is available on request from the California State Auditor.
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CALIFORNIA'S DRINKING WATER REPORT
PREPARED BY THE STATE BUREAU OF AUDITS
The following responses are provided by the Department of Health Services (Department)
to the comments prepared by the State Bureau of Audits in the draft report entitled
"California's Drinking Water."
SUMMARY
Page 3, Comment: Although the State of California (State) has ample evidence that
gasoline leaking from underground storage tanks is jeopardizing the safety of our drinking
water supplies, the State has not acted quickly and decisively to address the potential
health hazard. Officials from Health Services became aware as early as 1990 that MTBE
was contaminating drinking-water wells within California; however, Health Services did not
establish regulations to test for MTBE in drinking water until 1997. In addition, Health
Services did not adopt interim emergency regulations even though it has the authority to
do so.
Response: The Department believes that over the past two decades it has taken prudent
measures to determine the occurrence of gasoline contamination in drinking water sources
and has adopted appropriate monitoring and water quality regualtions for these
contaminants in a manner that is protective of public health. Since 1980, the Department
has undertaken numerous monitoring programs to determine the occurrence of organic
chemical contaminants such as MTBE in drinking water supplies. The most significant
program was the implementation of Assembly Bill (AB) 1803, which became law in 1983
and required that all drinking water from community water system wells throughout the
state be tested for organic compounds including gasoline contaminants. This program was
carried out between 1984 through 1989. The results from the AB 1803 monitoring program
disclosed no evidence of MTBE in these drinking water wells although other gasoline
contaminants were identified such as xylenes and benzene, a known human carcinogen .
As a consequence of these findings, in 1990, the Department adopted monitoring
requirements and drinking water standards for 22 organic chemicals. At the same time
that the Department established these monitoring requirement, water systems were also
requested to report any unregulated chemicals that they detected as a result of this
monitoring. This approach although voluntary has worked well in alerting the Department
to the presence of new contaminants, which may become potential problems statewide. In
fact, it was through this process that the City of Santa Monica notified the Department that
MTBE had contaminated several of the City's drinking water wells.
The State Auditor's Report indicates that the Department became aware as early as 1990
that MTBE was contaminating drinking-water wells within California. The Auditor's
1
*
Report appears to imply that this was widespread contamination unique to MTBE.
However, the wells to which the Auditor's Report refers were two wells located at the
Presidio in San Francisco. In 1990 the Department assumed regulatory authority over the
Presidio's water system and required a complete monitoring of the Presidio's potential
drinking water supplies. The results of the monitoring are contained in the attached
*California State Auditor’s comments on this response begin on page R-19.
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compliance order. As indicated the two wells showed contamination by several organic
chemical contaminants two of which, 1,2 -Dichloroethane (1,2-DCA) and MTBE, are
associated with gasoline contamination. These wells were not approved as drinking water
sources by the Department. Given that the groundwater was contaminated by a myriad of
contaminants the Department reasonably concluded that the finding of MTBE was not
unique and the groundwater contamination could be coming from several potential
sources.
The Auditor's Report concludes that the Department should have established a
regulation requiring monitoring for MTBE prior to 1997 and the regulation should have
been adopted as an emergency regulation . As indicated above the Department did not
have any data to indicate that MTBE was becoming a potential contaminant problem in
drinking water wells until the City of Santa Monica's notification in the fall of 1995.
Although the Department did contemplate an emergency unregulated chemical
monitoring regulation it did not believe that such a regulation would meet the
requirement for an emergency regulation pursuant to the Administrative Procedures Act.
The Auditor's Report concludes that an emergency regulation was justified to
immediately preserve the public health and safety. The Auditor's Report appears to base
this conclusion on the fact that MTBE was potentially more of a threat to contaminate
drinking water than other gasoline contaminates and that the chemical was an animal
carcinogen and, therefore, a possible human carcinogen. The Department agrees that
MTBE's chemical properties make it a greater threat to contaminate groundwater than
other gasoline contaminates. However, except for the Santa Monica situation, there was
2
no evidence to indicate widespread contamination was occurring. With regard to the
carcinogenicity issue, although the federal Environmental Protection Agency (EPA) has
indicated that studies show MTBE to be an animal carcinogen, those studies were based
on inhalation exposure. The evidence at the time did not support the conclusion that
MTBE was an animal carcinogen when ingested in drinking water. In fact, that issue
will not be resolved until the Proposition 65, Science Advisory Committee meets this
month to decide if MTBE should be listed as a carcinogen. Therefore, the Department
still believes that an emergency regulation could not have been justified and the approach
taken, recommending that water systems to begin monitoring prior to the adoption of a
monitoring regulation and following the normal regulation adoption process, was a
prudent one.
The Department would also like to point out that the approach the Department took had
the intended effect. As indicated by Figure 2 in the Auditor's Report, more than 2000
drinking water sources were sample prior to the adoption of the monitoring regulation.
This action demonstrated the willingness of the water utility industry to work
cooperatively with the Department and the importance that they place on the Department
recommendations. To date, the Department's records show only 61 confirmed drinking
water sources out of a total of 4,566 sources that show contamination with MTBE. This
figures disagrees with the draft Auditor's Report which indicates on page 28 that 533
drinking water sources show MTBE contamination. We assume that the State Auditor
included those sources for which the result was reported as "less than" the analytical
R-11
detection limit. We understand the possible confusion since one could interpret this
3
result as an MTBE detection but at a level below which the chemical cannot be
accurately measured. However, this interpretation is incorrect. A result reported as "less
than" means that the chemical was not detected.
Page 4, Comment: In addition, Health Services and the state and regional boards are not
making certain that those responsible for detecting and cleaning up chemical
contamination affecting drinking-water supplies are doing their jobs. Not only does the
State regulate underground storage tanks ineffectively, but it has also failed in some
instances to enforce aggressively the State's Safe Drinking Water Act and the laws
governing underground storage tanks.
Response: The Department of Health services issued 239 citations and 26 compliance
orders in 1997 and 186 citations and 17 compliance orders in 1998 for violations of the
California Safe Drinking Water Act . We agree with the State Auditor's that violations
should be pursued aggressively and we believe the number of citations the Department
has issued support this position. We will continue to take measures to ensure that all
instances of violations are enforced. We will also seek to resolve issues relating to turn
around time for receipt of laboratory data.
RECOMMEDATIONS
Page 6, Comment: The Department of Health Services needs to do the following to
manage threats to drinking water systems:
Comment: Strengthen its process for promptly obtaining and analyzing laboratory results
from all public water systems so that Health Services can quickly notify other agencies
when threats to drinking water occur.
Response: Although the Department agrees with the State Auditor on strengthening this
process, and is in fact already taking steps to do so, legislation may be required to
implement this process, if it cannot be accomplished administratively.
Comment: Ensure that it assesses the safety of water from a public water system at least
once every three years as required.
Response: The Department agrees with the State Auditor that assessments should be
conducted pursuant to requirements.
Comment: Consistently enforce the State's water quality laws by following up on
enforcement actions taken by the district offices and the local agencies.
Response: The Department issued 239 citations and 26 compliance orders in 1997 and
186 citations and 17 compliance orders in 1998. We agree with the State Auditors that
all enforcement actions should be followed up. We will continue to take measures to
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ensure that all enforcement actions are pursued.
Comments: Take the lead in establishing a geographical information system (GIS) that will
fulfill requirements for the federally mandated Drinking Water Source Assessment
Protection Program, help the State monitor risks to drinking-water sources, and serve as a
means for state and local agencies to exchange information about these risks.
Response: The Department is in the process of developing a GIS that will fulfill the
requirements of the Drinking Water Source Assessment Protection Program. If the
4
Department is to expand its role as the State Auditor's suggest a substantial increase in
resources will be required.
THE STATE'S REGULATORY PROCESS FOR ENSURING SAFE DRINKING WATER
Page 13, Comment: However, the division remains responsible for providing the
oversight, assistance, and training to the primacy agencies, which regulate 2,283 small
public water systems.
Response: The 2,283 small water systems referenced above include community and non-
community, non-transient water systems that are subject to monitoring for organic
5
chemical contaminants. This figure does not represent the non-community water systems
regulated by the primacy agencies.
THE STATE HAS TAKEN A "WAIT AND SEE' APPROACH TO DEALING WITH MTBE
CONTAMINATION
Page 23, Comment: The State must follow a lengthy protocol when determining the risk
factors associated with contaminants in drinking water, and inconclusive scientific
information can hinder the State's efforts to formulate policies that apply to a particular
contaminant. Nonetheless, the State's Department of Health Services (Health Services)
and the State Water Resources Control board (state board) had sufficient information and
opportunities to deal aggressively with contamination of water sources by MTBE. Health
Services and the state board could have responded to available information on the
potential health effects of MTBE and the differences noted between MTBE and the
gasoline components benzene, toluene, ethyl benzene, and xylenes, commonly called
BTEX, when these chemicals are exposed to groundwater. Ultimately, the Legislature has
had to take the lead on the issues surrounding MTBE by requiring Health Services to
adopt primary and secondary drinking-water standards for MTBE and by calling for studies
on MTBE's effect on human health as well as analyses of possible alternatives to MTBE's
use in gasoline.
Response: The Department addresses the above issue in the first response although it
should be noted that the Department supported the legislation to develop secondary and
primary drinking water standards for MTBE.
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Page 24, Comment: The interim action level is the amount of MTBE that researchers
expect would adversely affect the public health if the amount occurred in drinking water.
Response: The definition is incorrect. The interim action level is the amount of MTBE that
6
researchers would not expect to adversely affect the public health if the amount occurred
in drinking water.
THE STATE WAS LATE ADOPTING EMERGENCY REGULATIONS FOR MONITORING
MTBE
Page 27, Comment: Given the chronology of warnings described above, we believe that
Health Services had sufficient evidence on or before February 1996 to adopt emergency
regulations for MTBE instead of issuing the advisory to public water systems. Under the
provisions of the State's Safe Drinking Water Act, Health Services may adopt a regulation
as an emergency if the regulation is necessary for the immediate preservation of the public
health and safety. Emergency regulations adopted by Health Services would have been
exempt from the normal review and approval process and would have become effective
once filed with the Secretary of State. Further the regulations could have remained in
effect up to 180 days, thus affording Health Services ample time to complete the public
notice process for adopting permanent regulations.
Response: The Department has responded to this issue in its first response. The length
7
of time the State Auditor's Report has for the duration of the emergency regulations is in
error it should be 120 days rather than 180 days.
Page 28, Comment: When asked why it did not adopt regulations sooner, Health
Services stated that, although it considered adopting emergency regulations to establish
monitoring requirements for MTBE, it concluded that the MTBE contamination identified at
the City of Santa Monica's wells was not an emergency as defined by the State's
Administrative Procedures Act. We do not agree, this act, like the State's Safe Drinking
Water Act, specifies that an emergency is an event that calls for the immediate
preservation of the public health and safety.
8
Response: See first remarks. This statement does not reflect the Department's position.
EXISTING PROCEDURES NEED TO ENSURE WATER SYSTEM'S EARLY
SUBMISSION OF LAB RESULTS
Pages 40-43, Comment: Health Services does not ensure that all public water systems
required to submit lab results to the State have in fact submitted the data from their water
quality sampling. Also, because Health Services does not require electronic reporting of
sample results, Health Services experiences delays in receiving 28 percent of the sample
results. Finally, Health Services does not include in its database the sample results it
receives from 4,600 small water systems. Until Health Services modifies its existing
policies and procedures for tracking information on water quality monitoring, the State
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cannot ensure that all sample results are available for its timely evaluation of potential
threats to drinking water.
Response: The Department is reviewing its data management procedures and will initiate
necessary changes to ensure timely receipt, review and evaluation of data.
Page 41, Comment: For the 14 labs responding to our survey, we found that 35 percent
of the water analysis data submitted by the labs for these public water systems did not
appear in Health Services' database.
Response: The Department is reviewing its database and will implement procedures to
ensure that the data appears in the database.
Page 41, Comment: Secondly, we question Health Services' policy of allowing the public
water systems to submit water analysis results 10 days after the month in which the
systems collected the samples. Although water sample results exceeding the maximum
contaminant level must be reported within 48 hours to the district offices,
for the remaining water sample results, Health Services could be unaware of
contamination trends for up to 41 days, if we assume the water systems have submitted
the results promptly.
Response: The Department will review the procedures for reporting water analysis results
and make changes, if necessary.
SOME PRIMACY AGENCIES AND DISTRICT OFFICES DO NOT FOLLOW STATE
POLICIES FOR ENSURING WATER QUALITY
Page 45, Comment: As a result, public water systems throughout the state are subject to
different monitoring and reporting requirements.
Response: The Department agrees monitoring requirements should be the same and we
will review our current policies andprocedures to ensure uniformity.
Pages 45 and 46, Comment: In another case, a district failed to adhere to the
established sampling protocol for treated drinking-water sources. Chemical analysis of the
water prior to treatment, over an eight-year period ending in May 1997, showed levels of
benzene in the water supply that averaged 2.6 ppb.
Response: The Department agrees with the State Auditor's Report that policies and
procedures should be uniform. We will review existing policies and procedures and make
necessary changes.
Page 47, Comment: In these nine instances, we were unable to determine justifications
for reductions in the sampling frequencies. Nevertheless, in order for Health Services to
protect drinking-water sources adequately, it must ensure that its staff and primacy
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agencies adhere to established procedures.
Response: The Department agrees with the State Auditor's Report that staff should
adhere to established procedures. We will take measures to ensure that established
procedures are adhered to.
PUBLIC WATER SYSTEMS HAVE NOT RECEIVED PENALTIES FOR VIOLATING
WATER QUALITY LAWS
Pages 50 and 51, Comment: In 7 of 39 sample cases, we found that Health Services or
primacy agencies did not sufficiently penalize public water systems that did not comply
with sampling or public notification requirements.
Response: The Department issued 239 citations and 26 compliance order to PWS in 1997
and 186 citations and 17 compliance orders in 1998. We agree with the State Auditors that
all enforcement actions should be aggressively pursued. We will review the enforcement
policy and take measures, where necessary, to ensure consistency.
RECOMMENTATIONS
Page 57, Comment: Health Services should take the following actions:
Page 57, Comment: Establish a process that will reconcile Health Services' information
with that of the public water systems so that Health Services can verify that it has received
all sample results.
Response: The Department is in the process of implementing changes in its data system
to reconcile sample results.
Page 57, Comment: Amend its regulations to require the electronic submission of
laboratory results from either the public water systems or their contracted labs. In addition,
the electronic submission of lab results should be a condition of the laboratories
certification process. The water systems and the laboratories should submit lab results to
Health Services with a reasonable time, such as five days, after they have completed the
analysis.
Response: The Department agrees that electronic submission of data is more efficient and
will examine the possibility of amending its regulations to facilitate receiving data
electronically and in a timely manner.
Page 57, Comment: Require its primacy agencies to report all water sample results from
the small water systems so that Health Services can enter the results into its database.
Response: The Department agrees that having all results in its database is desirable.
Although the augmentation of the database may require substantial resources, we are
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beginning the process to obtain the small water system water quality data from the primacy
agencies. It should be noted that the USEPA requires that only sample results exceeding
drinking water standards be reported.
Page 57, Comment: Make certain that its staff and local primacy agencies are aware of
and adheres to established monitoring and reporting procedures for managing chemicals
found in drinking water. Further, Health Services should no longer permit its staff to round
down the numbers for maximum contaminant levels when determining whether a chemical
has exceeded these levels.
Response: The Department intends to notify staff of the need for uniformity in monitoring
9
and provide training to staff and local primacy agencies. The Department does not agree
with the recommendation on rounding down. The position in the Auditor's Report is not
supported by the science.
Page 57, Comment: Confirm that vulnerability assessments supporting reductions in the
sampling frequency of water systems occur every three years and that staff document the
evaluation of each criterion before granting these reductions.
Response: The Department agrees that the vulnerability assessments follow the required
procedures. We will take measures to ensure that process occurs.
Page 60, Comment: The state's designated regulatory entities do not always
communicate effectively among themselves about the presence of gasoline contaminants
in drinking water.
Response: The Department is committed to improving communication with other
regulatory agencies and will develop policies or procedures necessary to do so.
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Blank page insetrted for reprodution purposes only.
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COMMENTS
California State Auditor’s Comments
on the Response From the
Department of Health Services
T
o provide clarity and perspective, we are commenting on
the Department of Health Services’ response to our audit
report. The numbers correspond to the numbers we have
placed in the response.
1
The department mischaracterizes our statement on MTBE con-
tamination on drinking-water wells in 1990. We clearly state on
page 17, that the State was aware as early as 1990 that MTBE
affected two of the Presidio of San Francisco’s drinking-water
wells.
2
In disputing our conclusion that it should have acted earlier to
regulate MTBE, the department continues to disregard other
relevant factors, such as increases in the State’s use of MTBE and
in the number of storage tanks leaking petroleum containing
MTBE into the groundwater, which are discussed on pages 17
and 18. Further, we acknowledge that inconclusive scientific
information can hinder the State’s efforts to formulate policy.
However, the department adopted regulations in 1997 using
relatively the same scientific information that was available to it
in 1996 when it issued the MTBE advisory. Therefore, as stated
on pages 1 and 18, we believe that the department had ample
evidence on or before February 1996 to adopt emergency regula-
tions instead of simply issuing its advisory.
3
The department is correct. We responded to the department’s
point by changing the text of our report.
4
As discussed on page 45, if the department leads the geographi-
cal information system (GIS) project, resources currently avail-
able to it and to the State Water Resources Control Board can be
spent in a manner that avoids the duplication of costs and
efforts.
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5
We are not clear on the distinction the department is attempting
to make. The 2,283 small water systems discussed on page 8
are composed of both community water systems and
noncommunity-nontransient water systems. Perhaps the
department is attempting to highlight the fact that
noncommunity-transient water systems have been excluded
because they are not subject to its water quality monitoring
regulations for organic chemicals, such as gasoline contami-
nants.
6
The department is correct. We responded to the department’s
point by changing the text of our report.
7
The department is incorrect. As stated on page 18, the provi-
sions of the State’s Safe Drinking Water Act, specifically Section
116377 of the Health and Safety Code, allow emergency regula-
tions adopted by the department to remain in effect for up to
180 days.
8
The department is incorrect. The department made this state-
ment, which was included in a report on groundwater protec-
tion prepared by the California Environmental Protection
Agency and submitted to the Joint Legislative Audit Committee.
9
The department is correct that we did not use “science” to arrive
at our conclusion. However, in our opinion, it was not neces-
sary to apply science to arrive at the conclusion presented on
page 30; that is, the policy does not stress the importance of the
maximum contaminant level and stringent monitoring require-
ments the department established to protect the quality of the
State’s drinking water.
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