HB 2551 — water; desalination action plan.

HB2551 - 532R - HS Ver       HouseSenate Engrossed House Bill       State of Arizona House of Representatives Fifty-third Legislature Second Regular Session       HOUSE BILL 2551       AN ACT   amending titlesection 45,41‑621, chapter 1, article 1, Arizona Revised Statutes,Statutes; by adding section 45-118;

relating to therisk departmentmanagement. of water resources.

Section 1.  TitleSection 1.  Section 45,41-621, chapter 1, article 1, Arizona Revised Statutes, is amended by adding section 45-118, to read:

START_STATUTE45-118.  DesalinationSTART_STATUTE41-621.  Purchase actionof plan;insurance;

reportcoverage; A.  THE DIRECTOR SHALL PREPARE A DESALINATION ACTION PLAN THAT INCLUDES ALL THE FOLLOWING:

1.  ANlimitations; IDENTIFICATION OF AREAS WITHIN THis STATE WHERE BRACKISH GROUNDWATER EXISTS IN SIGNIFICANT AMOUNTS.

2.  ANexclusions ESTIMATEA.  The OFdepartment THEof COSTadministration TOshall TREATobtain ANDinsurance DELIVERagainst THEloss, BRACKISHto GROUNDWATERthe FORextent ANit ECONOMICALLYis VIABLEdetermined USE.necessary and in the best interests of the state as provided in subsection F of this section, on the following:

3.  AN1.  All IDENTIFICATIONstate OFowned AREASbuildings, including those of thisthe universities, excluding buildings of community colleges, whether financed in whole or in part by state THATmonies WOULDor BENEFITbuildings FROMin THEwhich USEthe OFstate THEhas TREATEDan BRACKISHinsurable GROUNDWATER.interest as determined by the department of administration.

4.  aN2.  Contents IDENTIFICATIONin OFany POTENTIALbuildings FUNDINGowned, SOURCESleased FORor THErented, TREATMENTin ANDwhole DELIVERYor OFin THEpart, BRACKISHby GROUNDWATER.or to the state, excluding buildings of community colleges, and reported to the department of administration.

5.  AN3.  The EVALUATIONstate OFand THEits FEASIBILITYdepartments, ANDagencies, COSTboards OFand DISPOSalcommissions and all officers, agents and employees thereof and such others as may be necessary to accomplish the functions or business of THEthe BRINEstate PRODUCTand thatits resultsdepartments, fromagencies, TREATingboards BRACKISHand GROUNDWATER.commissions against liability for acts or omissions of any nature while acting in authorized governmental or proprietary capacities and in the course and scope of employment or authorization except as prescribed by this chapter.

6.  An4.  All evaluationpersonal andproperty analysisreported of issues related to the sourcesdepartment of theadministration, brackishincluding groundwatervehicles identifiedand inaircraft theowned desalinationby actionthe plan,state includingand anyits potentialdepartments, impactsagencies, thatboards mightand occurcommissions toand theall waternon‑owned suppliespersonal ofproperty waterwhich usersthat inis under the areaclear responsibility of thethis brackishstate groundwaterbecause ifof thewritten groundwaterleases isor withdrawnother andwritten treatedagreements. for use.

B.  A5.  The DESALINATIONstate ACTIONand PLANits MAYdepartments, ALSOagencies, IDENTIFYboards ANDand EVALUATEcommissions POTENTIALagainst BINATIONALcasualty, AGREEMENTSuse orand projectsoccupancy RELATEDand TOliability thelosses TREATMENTof OFevery BRACKISHnature GROUNDWATERexcept oras sea water USING THE CRITERIA prescribed inby SUBSECTIONthis Achapter. OF THIS SECTION.

C.  If6.  Workers' thecompensation director determines there is significant brackish water underground in a county adjacent to the colorado river, the director shall include in the desalination action plan an analysis and evaluationemployers' ofliability theinsurance. source of the underground water, whether the water is being used and, if the water is being used, the purposes for which it is being used.  If the director concludes that the likely source of the water is colorado river water, the director shall not address that water in the desalination action plan.  Any conclusion made by the director as to the source of the water is not binding for any purpose and does not create a presumption of the legal character of the water in any administrative or judicial proceeding.

D.  THE7.  Design DIRECTOR SHALL SUBMIT THE INITIAL DESALINATION ACTION PLAN ON OR BEFORE SEPTEMBER 30, 2019 TO THE GOVERNOR, THE PRESIDENT OF THE SENATE, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, THE MEMBERS OF THE SENATE NATURAL RESOURCES, ENERGY AND WATER COMMITTEE, OR ITS SUCCESSOR COMMITTEE, AND THE MEMBERS OF THE HOUSE OF REPRESENTATIVES ENERGY, ENVIRONMENT AND NATURAL RESOURCES COMMITTEE, OR ITS SUCCESSOR COMMITTEE, and shallconstruction provide a copy of thebuildings, reportroads, toenvironmental theremediations secretary of state.  The director shall submit subsequent REPORTS on the desalination action plan and itsother resultsconstruction byprojects. December 31 every two years there‑after.

8.  Other exposures to loss where insurance may be required to protect this state and its departments, agencies, boards and commissions and all officers, agents and employees acting in the course and scope of employment or authorization except as prescribed by this chapter.

B.  To the extent it is determined necessary and in the best interests of the state, the department of administration shall obtain insurance or provide for state self‑insurance against property damage caused by clients and liability coverage resulting from the direct or incidental care of clients participating in programs of the state and its departments, agencies, boards or commissions relating to custodial care.  The insurable programs shall include foster care, programs for the persons with developmental disabilities, an independent living program pursuant to section 8‑521 and respite‑sitter service programs.  The department shall obtain insurance or provide for state self‑insurance pursuant to this subsection to protect the clients participating in these programs and individual providers of these program services on behalf of the state and its departments, agencies, boards or commissions.  The insurance provided under this subsection does not include medical or workers' compensation coverage for providers.  The department may include in its annual budget request pursuant to section 41‑622, subsection D a charge for the insurance or self‑insurance provided in this subsection.  To assist in carrying out the provisions of this subsection, the department shall establish a seven member seven-member advisory board in accordance with the following provisions:

1.  The board shall consist of three members appointed by the director of the department of administration, at least one of whom shall be a foster parent, one member appointed by the director of the department of economic security, one member appointed by the director of the department of child safety, one member appointed by the director of the state department of corrections, and one member appointed by the administrative director of the courts.

2.  The board shall elect a chairman from among its members.

3.  The board shall hold at least two meetings a year or shall meet at the call of the chairman.

4.  Board members shall serve for three year three-year terms.

5.  Board members are not eligible to receive compensation but are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

6.  The board shall provide advice to the department regarding coverage and administration of the provisions of this subsection and shall assist the department in coordinating its activities pursuant to this subsection with state departments, agencies, boards and commissions.

C.  The department of administration may obtain insurance against loss, to the extent it is determined necessary and in the best interests of the state as provided in subsection F of this section for the professional liability of individual physicians and psychiatrists who provide services under a contract with the state department of corrections.  Coverage is limited to acts and omissions committed inside a state department of corrections facility while in the performance of the contract and to individual physicians and psychiatrists who demonstrate to the satisfaction of the state department of corrections that they cannot otherwise obtain professional liability coverage for the services required by the contract.  The director of the department of administration may impose on the state department of corrections a deductible for each loss that arises out of a professional liability claim pursuant to this subsection.  Any changes in deductible amounts established by the director shall be subject to review by the joint legislative budget committee.

D.  The department of administration may obtain property, liability, disability or workers' compensation insurance, self‑insure or develop risk retention pools to provide for payment of property loss or casualty claims or disability insurance claims against contractors of this state with the approval of the joint legislative budget committee.  With respect to insurance, self‑insurance or risk retention pools for contractors licensed and contracted to do work for this state, the coverage afforded applies with respect to the conduct of the business entity of that contractor.  The pool is available to all contractors regardless of the amount that the state contracted state-contracted work bears in relation to the amount of nonstate contracted nonstate-contracted work.  The contractor shall be terminated from the pool if the contractor ceases to be a state contractor.

E.  The department of administration may determine, in the best interests of the state, that state self‑insurance is necessary or desirable and, if that decision is made, shall provide for state self‑insurance for losses arising out of state property, liability or workers' compensation claims prescribed by subsection A of this section.

If the department of administration provides state self‑insurance, such coverage shall be excess over any other valid and collectible insurance.

The director of the department of administration may impose on state departments, agencies, boards and commissions a deductible for each loss that arises out of a property, liability or workers' compensation loss pursuant to this subsection.  Any changes in deductible amounts established by the director shall be subject to review by the joint legislative budget committee.

F.  In carrying out the provisions of this chapter, the department of administration shall establish and provide the state with some or all of the necessary risk management services, or shall contract for risk management services pursuant to chapter 23 of this title, as the director of the department of administration deems necessary in the best interest of the state, and may, in addition to other specifications of such coverage as deemed necessary, may determine self‑insurance to be established.  The provisions of Chapter 23 of this title shall does not apply to the department of administration's procurement of insurance to cover losses arising out of state property or liability claims prescribed in subsections A and D of this section or excess loss insurance for the state's workers' compensation liability for individual or aggregate claims, or both, in such amounts and at such primary retention levels as the department of administration deems in the best interest of the state.  In purchasing insurance to cover losses arising out of state property or liability claims prescribed by subsection A of this section, the department of administration is not subject to the provisions of title 20, chapter 2, article 5.

G.  No A successful bidder for risk management services pursuant to this section shall be is not entitled to receive, directly or indirectly, any sales commission, contingent commission, excess profit commission, or other commissions, or anything of value, as payment for the risk management services except those amounts received directly from this state as payment for the risk management services.

H.  The department of administration shall pay for purchased risk management services, premiums for insurance on state property and state liability and workers' compensation pursuant to the provisions of this chapter.

I.  A state officer, agent or employee acting in good faith, without wanton disregard of his statutory duties and under the authority of an enactment that is subsequently declared to be unconstitutional, invalid or inapplicable, is not personally liable for an injury or damage caused thereby except to the extent that he the officer, agent or employee would have been personally liable had the enactment been constitutional, valid and applicable.

J.  A state officer, agent or employee, except as otherwise provided by statute, is not personally liable for an injury or damage resulting from his an act or omission in a public official capacity where if the act or omission was the result of the exercise of the discretion vested in him the officer, agent or employee and if the exercise of the discretion was done in good faith without wanton disregard of his statutory duties.

K.  The state and its departments, agencies, boards and commissions are immune from liability for losses arising out of a judgment for willful wilful and wanton conduct resulting in punitive or exemplary damages.

L.  The following exclusions shall apply to subsections A, B and E of this section:

1.  Losses against this state and its departments, agencies, boards and commissions that arise out of and are directly attributable to an act or omission determined by a court to be a felony by a person who is provided coverage pursuant to this article unless the state knew of the person's propensity for that action, except those acts arising out of the operation or use of a motor vehicle.

2.  Losses arising out of contractual breaches.

M.  If self‑insurance coverage is determined to exist, the attorney general, with funds provided by the department of administration, shall provide for the defense, either through his the attorney general's office or by appointment of outside legal counsel, of the state and its departments, agencies, boards and commissions and all officers, agents and employees thereof and such others as are insured by the department of administration for or on account of their acts or omissions covered pursuant to this chapter.  All state departments, agencies, boards and commissions, all officers, agents and employees thereof and such others as are insured by the department of administration shall cooperate fully with the attorney general and department of administration in the defense of claims arising pursuant to this chapter.

N.  A claim for liability damages made pursuant to this chapter may be settled and payment made up to the amount of twenty‑five thousand dollars or such higher limit as may be established by the joint legislative budget committee with the approval of the director of the department of administration.  A claim over the amount of twenty‑five thousand dollars up to fifty thousand dollars or such higher limit as may be established by the joint legislative budget committee may be settled and payment made with the approval of the director of the department of administration and the attorney general.  Any claim over the amount of fifty thousand dollars or such higher limit as may be established by the joint legislative budget committee may be settled and payment made with the approval of the director of the department of administration, the attorney general and the joint legislative budget committee.  If it is in the best interest of this state, the joint legislative budget committee may establish higher settlement limits.  Any settlements involving amounts in excess of fifty thousand dollars or such higher limit as may be established by the joint legislative budget committee shall be approved by the department of administration, the attorney general and the joint legislative budget committee pursuant to the authority granted.  The settlement of liability claims shall be solely the authority of the department of administration, the attorney general and the joint legislative budget committee.  No state department, agency, board or commission or any officer, agent or employee of this state may voluntarily make any payment, assume any obligation, incur any expense or maintain the individual right of consent for liability claims made pursuant to this chapter except as provided by this section.  a judgment on a claim for liability damages made pursuant to this chapter that is on appeal may be settled only as provided in this subsection.

O.  Neither the authority provided by this section to insure, nor the exercise of such authority, shall:

1.  Impose any liability on this state or the departments, agencies, boards and commissions or any officers, agents and employees of this state unless such liability otherwise exists.