BILL ANALYSIS Ó
AB 681
Page 1
Date of Hearing: March 22, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 681 (Wieckowski) - As Introduced: February 17, 2011
PROPOSED CONSENT
SUBJECT : EMERGENCY RESPONSE: HAZARDOUS SUBSTANCES: COSTS
KEY ISSUE : SHOULD LOCAL GOVERNMENTS NO LONGER BE PRECLUDED FROM
RECOVERING THEIR COSTS FOR EMERGENCY RESPONSE TO HAZARDOUS
SUBSTANCE SPILLS WHEN THE SPILL IMPACTS A PUBLIC RIGHT-OF-WAY OR
OTHERWISE IS NOT CONTAINED TO THE PROPERTY OF THE PARTY
RESPONSIBLE FOR THE SPILL?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
According to the author and sponsor, current law unnecessarily
limits the ability of local government to recover costs
associated with emergency response to hazardous material spills
based on whether the spill was contained to the property of the
responsible party. They contend that spills of hazardous
materials frequently occur on or spread to public right-of-ways
and other properties, necessitating the services of city or
county hazardous materials teams, yet local government is
precluded from recovering their emergency response expenses
unless the spill is contained to the property of the responsible
party. This non-controversial bill seeks to expand local cost
recovery to incidents that result in an evacuation from the
building, structure, property, or public right-of-way where the
incident originates, or that result in the spread of hazardous
substances or fire beyond the building, structure, property, or
public right-of-way where the incident originates. The bill
also changes the definition of "hazardous substance" for the
purpose of these provisions to make the definition more
consistent under the Health and Safety Code. There is no known
opposition to this bill.
SUMMARY : Enables local government cost recovery for emergency
response to hazardous substances spills under a wider range of
circumstances. Specifically, this bill :
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1)Provides that those expenses of an emergency response
necessary to protect the public from a real and imminent
threat to health and safety by a public agency to confine,
prevent, or mitigate the release, escape, or burning of
hazardous substances, as defined, are a charge against any
person whose negligence causes the incident, if either of the
following occurs:
a) Evacuation from the building, structure, property, or
public right-of-way where the incident originates is
necessary to prevent loss of life or injury.
b) The incident results in the spread of hazardous
substances or fire posing a real and imminent threat to
public health and safety beyond the building, structure,
property, or public right-of-way where the incident
originates.
2)Expands the definition of "hazardous substance", for the
purposes of these provisions, to include those listed by
subdivision (q) of Section 25501 of the Health and Safety
Code.
EXISTING LAW :
1)Provides that those expenses of an emergency response
necessary to protect the public from a real and imminent
threat to health and safety by a public agency to confine,
prevent, or mitigate the release, escape, or burning of
hazardous substances, as defined, are a charge against any
person whose negligence causes the incident, if either of the
following occurs:
a) Evacuation beyond the property where the incident
originates is necessary to prevent loss of life or injury.
b) The incident results in the spread of hazardous
substances or fire posing a real and imminent threat to
public health and safety beyond the property of origin.
(Health and Safety Code Section 13009.6(a). All references
are to this Code unless otherwise noted.)
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2)Requires deduction of the amount of any reimbursement for
eligible costs received by a public agency pursuant to Chapter
6.8 (commencing with Section 25300) of Division 20 of the
Health and Safety Code from any amount otherwise recoverable
under this section. (Section 13009.6(b).)
3)Defines "hazardous substance" to mean any hazardous substance
listed in Health and Safety Code Section 25316 or in Section
6382 of the Labor Code. (Section 13009.6(c).)
4)Pursuant to Section 25501(q), also defines "hazardous
substance" to mean any substance or chemical product for which
one of the following applies:
a) The manufacturer or producer is required to prepare a
MSDS for the substance or product pursuant to the Hazardous
Substances Information and Training Act (Chapter 2.5
(commencing with Section 6360) of Part 1 of Division 5 of
the Labor Code) or pursuant to any applicable federal law
or regulation.
b) The substance is listed as a radioactive material in
Appendix B of Chapter 1 of Title 10 of the Code of Federal
Regulations, maintained and updated by the Nuclear
Regulatory Commission.
c) The substances listed pursuant to Title 49 of the Code
of Federal Regulations.
d) The materials listed in subdivision (b) of Section 6382
of the Labor Code.
COMMENTS : According to the author and sponsor, current law
unnecessarily limits the ability of local government to recover
costs associated with emergency response to hazardous material
spills based on whether the spill was contained to the property
of the responsible party. They contend that spills of hazardous
materials frequently occur on or spread to public right-of-ways
and other properties, necessitating the services of city or
county hazardous materials teams, yet local government is
precluded from recovering their emergency response expenses
unless the spill is contained to the property of the responsible
party. This non-controversial bill seeks to expand local cost
recovery to incidents that result in an evacuation from the
AB 681
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building, structure, property, or public right-of-way where the
incident originates, or that result in the spread of hazardous
substances or fire beyond the building, structure, property, or
public right-of-way where the incident originates.
Limitations on recovery of emergency response expenses. Under
existing law, cost recovery for emergency response is available
only if the incident either results in (1) an evacuation "beyond
the property where the incident originates" or (2) the spread of
hazardous substances "beyond the property of origin." (Section
13009.6(a).) In both cases, the operative word is "beyond."
However, if the incident originates on a public right-of-way
(e.g. a tanker truck spills hazardous materials on a public
highway), existing law arguably does not allow cost recovery
because evacuation of the affected section of the highway does
not constitute evacuation "beyond the property where the
incident originates", and a spill on the highway may not
necessarily spread "beyond" the highway. Similarly, if the
incident originates in a building or structure on a large
property, requiring emergency response, but the evacuation or
spread of hazardous materials remains within the confines of the
large property, it would appear that local cost recovery for the
emergency response is precluded because neither the evacuation
nor spread occurred strictly "beyond the property of origin."
The California Association of Environmental Health
Administrators, the sponsor of the bill, contends that there
have been numerous incidents where local governments have, in
fact, been prevented from recovering their emergency costs under
existing law. They cite the following examples:
Transportation accidents represent a significant number
of responses these often require sections of the road
and on occasion residences to be closed or evacuated.
In 2005, a tanker carrying chrome etch failed, causing
the evacuation of several houses and closing the freeway
for several hours in San Diego. The county was unable
to get cost recovery.
In fall of 2010, the San Diego Hazardous Incident
Response Team responded to a commercial laundry in North
County where the operator had inadvertently mixed two
incompatible chemicals into the same tank during an
off-loading operation. The incident resulted in the
evacuation of the facility but no other properties or
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public right of ways were affected. The incident took
many hours to resolve, but it was ineligible for cost
recovery under existing law.
In the city of Artesia, an ice company had several
incidents involving the release of the chemical compound
NH4. The release was confined to the property of origin
so the current law would not allow cost recovery. At a
supermarket warehouse in El Monte, there was another NH4
release that required the building to be evacuated but
did not go beyond the property of origin.
Many calls in response to mercury releases result in
evacuation of the facility or building, but not the
entire property, and may not affect offsite properties.
ÝTwo examples in San Diego County cited.] Many of these
incidents result in resource and time intensive
responses without reimbursement.
There have also been incidents that trigger emergency
response because of an offsite release that does not
warrant an evacuation. An example is when a hazardous
substance enters a storm drain has an offsite impact but
does not result in an offsite evacuation.
This bill expands local cost recovery for emergency response to
cover additional circumstances, but does not change the
liability standard for recovery. To address the type of
incidents described above, this bill would expand local cost
recovery to incidents that result in an evacuation from the
building, structure, property, or public right-of-way where the
incident originates, or that result in the spread of hazardous
substances or fire beyond the building, structure, property, or
public right-of-way where the incident originates. Cost
recovery would therefore be permitted when the incident resulted
in an evacuation from or spread of hazardous substances beyond a
building or structure where the incident originated, even when
the evacuation or spread of hazardous substances remains within
the overall property. Cost recovery would also be permitted
where the incident originated on and required evacuation of a
public right-of-way-- a frequent occurrence in the case of
vehicle accidents involving the transport of hazardous
materials, according to proponents of the bill.
Importantly, this bill does not change the standard of liability
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for recovery under existing law because costs remain a charge
against a person only if the incident was caused by that
person's negligence.
Because incidents involving evacuation or spread of hazardous
materials that threaten public health and safety frequently
require emergency response by local government regardless of
whether the hazardous materials migrate "beyond" the boundaries
of the property of origin, it is reasonable that the ability of
local agencies to recover their costs from the person whose
negligence caused the incident should not be limited on this
basis.
This bill also changes the definition of "hazardous substance"
for these provisions. According to the sponsor, this bill
changes the definition of "hazardous substance" to make it
"consistent with other elements" within the Health and Safety
Code. Under existing Section 13009.6, the definition of
"hazardous substance" means any hazardous substance listed in
Section 25316 or Section 6382 of the Labor Code. This bill
expands that definition by adding those substances described in
Section 25501(q) of the Health and Safety Code-which, it should
be noted, cross-references those materials listed in subdivision
(b) of Section 6382 of the Labor Code.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Environmental Health Administrators
(CAEHA)
California Fire Chiefs Association
California Police Chiefs Association
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334