BILL ANALYSIS
AB 305
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: AB 305
AUTHOR: Nava
AMENDED: May 6, 2009
FISCAL: Yes HEARING DATE: July 6, 2009
URGENCY: No CONSULTANT: Rachel Machi
Wagoner
SUBJECT : HAZARDOUS MATERIALS: STATUTE OF
LIMITATIONS: PENALTIES
SUMMARY :
Existing law :
1)Requires facilities that store, use or handle hazardous
materials above reportable amounts to prepare and file a
Hazardous Materials Business Plan (HMBP) for the safe
storage and use of chemicals and report any release or
threatened release of a hazardous material to the
appropriate agency and the Office of Emergency Services.
2)Provides that violations of hazardous waste and materials
reporting and management requirements are punishable by
criminal and civil penalties as specified.
3)Establishes a default one-year statute of limitations on
civil actions for violations of HMBP requirements.
4)Establishes a five-year statute of limitations for the
enforcement of enumerated sections of Division 20 of the
Health and Safety Code, which addresses other hazardous
materials and wastes.
5)Provides that any handler or employee, authorized
representative, agent, or designee of a handler shall, upon
discovery, immediately report any release or threatened
release of a hazardous material to the appropriate agency.
6)Provides that a person who fails to report or who knowingly
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makes a false or misleading report concerning an oil spill
occurring in waters of the state, other than marine waters,
shall, upon conviction, be punished by a fine of not more
than $50,000.
This bill addresses two separate issues involving hazardous
material enforcement by:
1)Making consistent the statute of limitations for taking a
civil action for HMBP violations with other hazardous waste
and material violations by including it in the Code of Civil
Procedure provision specifying a five-year statute of
limitations.
2)Specifying that the failure to report an oil spill or
knowingly making a false or misleading report on an oil
spill occurring in waters of the state is punishable, upon
conviction, by imprisonment in the county jail in addition
to the existing provision providing for a fine.
COMMENTS :
1) Purpose of Bill . According to the author, this bill aims
to address two deficiencies in current law.
a) The statute of limitations for HMBP violations will
give prosecutors sufficient time to go after those who
fail to properly maintain their hazardous material
inventories and response plans. When hazardous material
business plans are not properly maintained and updated,
first responders, employees of the business, and the
general public are put at unnecessary risk.
b) By adding jail time for failure to report oil spills
or for making false or misleading reports about spills,
AB 305 puts serious pressure on polluters to immediately
and accurately report oil spills occurring in waters of
the state.
2) Background . According to the Department of Fish and Game's
of Spill Prevention and Response, there are nearly three
times as many inland spills as there are marine spills.
Many of these spills are the result of poor maintenance of
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old equipment.
3) Arguments in support . The sponsor argues that the
disparity between the statutes of limitations for civil
actions for HMBP violations and the other chapters is
significantly prejudicial to the appropriate prosecution
and punishment of owners and operators of hazardous
material facilities who disregard the hazardous material
and waste requirements mandated by HMBP statutes. Often,
when the district attorney's office files a HMBP reporting
violation, it does so in conjunction with underground
storage tank or other hazardous waste-related violation(s).
Therefore, despite the fact that a HMBP violation can
continue without remedy for an extended length of time, the
default one-year statute of limitations can unnecessarily
preclude the filing of charges or cause the premature
filing of other charges. Having consistent statutes of
limitations for interrelated hazardous waste violations
would allow for more efficient and effective enforcement of
these laws that Californians depend on to protect their
health and the environment.
Furthermore, the sponsor states that without reasonable
enforcement mechanisms in place for HMBP violations, it is
arguable that there is very little incentive for businesses
to comply with these laws. The default one-year statute of
limitations is not nearly enough time to allow for thorough
investigation of the violations(s) or administrative
enforcement procedures that may be attempted by the CUPA
(Certified Unified Program Agency) or other administrative
agency prior to a formal prosecution. In some cases, the
statute will run before these administrative processes are
complete.
The sponsors add that while AB 1960 (Nava) Chapter 562,
Statutes of 2008 made it a crime to fail to report or make
a false report regarding an oil spill in non-marine waters
of the state, AB 1960 did not qualify the type of offense.
AB 305 clarifies that these offenses are misdemeanors by
specifying that the offenses are punishable by a county
jail sentence.
4) Related Legislation . AB 1960 (Nava) Chapter 562, Statutes
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of 2008, increased the penalties for failing to report or
making a false or misleading report regarding an oil spill
in non-marine waters of California, and established new
maintenance standards, enforcement authority, and spill
contingency planning requirements for oil production
facilities, to be administered by the Division of Oil, Gas,
and Geothermal Resources. The penalties established by AB
1960 did not specify a jail time option for violations of
the oil spill reporting requirements.
AB 1946 (Nava) of 2008, would have extended the statute of
limitations for certain actions relating to hazardous
materials release response plans and inventory to five
years after discovery by the agency bringing the action.
AB 1946 was vetoed by Governor Schwarzenegger for stated
reasons unrelated to the statute of limitations on
hazardous materials release response plan violations.
SOURCE : California District Attorneys Association
SUPPORT : Solano County Board of Supervisors
OPPOSITION : None on file