BILL NUMBER: SB 841 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Wolk
FEBRUARY 18, 2011
An act to amend Section 40059.1 of the Public Resources Code,
relating to solid waste.
LEGISLATIVE COUNSEL'S DIGEST
SB 841, as introduced, Wolk. Solid waste: enterprises: contracts.
The existing California Integrated Waste Management Act of 1989
allows each county, city, or district to determine aspects of solid
waste handling that are of local concern and the means by which the
services are to be provided. Existing law imposes specified
restrictions on the enforceability of certain indemnity obligations
related to source reduction and diversion contained in a provision,
term, condition, or requirement in an ordinance, contract, franchise,
license, permit, or other entitlement or right adopted, entered
into, issued, or granted by a local agency. Existing law prohibits a
solid waste enterprise, as defined, from being liable for the
indemnity obligation under certain circumstances.
This bill would make technical corrections to that provision,
including with regard to the Department of Resources Recycling and
Recovery.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 40059.1 of the Public Resources Code is amended
to read:
40059.1. (a) The Legislature hereby finds and declares both of
the following:
(1) In 1989, the Legislature enacted this division as the
California Integrated Waste Management Act of 1989. One of the key
provisions of this division is that each local agency has the
responsibility for diverting 50 percent of all solid waste generated
within the local agency by January 1, 2000.
(2) The public policy objective of the Legislature in enacting
this section is to ensure that those local agencies that require an
indemnity obligation retain their responsibility for implementing the
diversion requirements of this division.
(b) For the purposes of this section, the following terms have the
following meanings:
(1) "Indemnity obligation" means any indemnity obligation directly
or indirectly related to the failure of a local agency to meet the
solid waste diversion requirements imposed by Chapter 6 (commencing
with Section 41780) of Part 2, that is expressly assumed by, or
imposed upon, the solid waste enterprise, whether pursuant to
ordinance, contract, franchise, license, permit, or other entitlement
or right, for the benefit of the local agency.
(2) "Local agency" means any county, city, city and county,
district, regional agency as defined in Section 40181, or other local
government agency.
(c) Any A provision,
term, condition, or requirement contained in any ordinance, contract,
franchise, license, permit, or other entitlement or right adopted,
entered into, issued, or granted, as the case may be, by a local
agency for solid waste collection and handling, including the
recycling, processing, or composting of solid waste, or in any
request for bids or proposals in connection with any such
a contract or franchise, that authorizes or
requires the imposition of an indemnity obligation, shall,
notwithstanding any such the provision,
term, condition, or requirement, be subject to all of the following
restrictions:
(1) An indemnity obligation shall not be enforceable if the
board imposed penalty imposed by the
department pursuant to Section 41850 is based solely upon the
failure of the local agency to establish and maintain a source
reduction and recycling element pursuant to Chapter 2 (commencing
with Section 41000) of Part 2, Chapter 3 (commencing with Section
41300) of Part 2, or Section 41750.1, as the case may be
applicable .
(2) Any board imposed A
penalty imposed by the department pursuant to Section 41850 is
based upon a local agency's failure to meet the solid waste
diversion requirements imposed by Chapter 6 (commencing with Section
41780) of Part 2, resulting in whole or in part from the solid waste
enterprise's breach of contract or noncompliance with any other
authorization, shall be apportioned in accordance with the percentage
of fault of the local agency and the solid waste enterprise.
(3) For purposes of this section, a solid waste enterprise is not
liable for the indemnity obligation to the extent that the solid
waste enterprise's breach or noncompliance resulted from the action
or failure to act of the local agency.
(4) No payment required or imposed pursuant to an indemnity
obligation, whether required or imposed by ordinance, contract,
franchise, license, permit, or other entitlement or right, may exceed
that portion of any penalty assessed by the board
department against the local agency that was caused by
the solid waste enterprise's breach or noncompliance of an express
obligation or requirement.
(5) No An indemnity obligation shall
not be enforceable against a solid waste enterprise until
the local agency has affirmatively sought, in good faith, all
administrative relief available pursuant to Chapter 6 (commencing
with Section 41780) and Chapter 7 (commencing with Section 41800) of
Part 2, unless the local agency demonstrates good cause, based on
substantial evidence in the record, for not pursuing that
administrative relief. The solid waste enterprise shall cooperate, in
good faith, with the local agency seeking that administrative relief
and shall provide in writing to the local agency all known defenses
to the imposition of penalties.
(d) Nothing in this section shall be construed to preclude either
party from seeking any other remedy under law or equity.
(e) The provisions of this section are not subject to waiver, and
any attempted waiver shall be null and void as against public policy.
(f) This section is not intended to do any of the following:
(1) Add to or expand the authority of local agencies to determine
aspects of solid waste collection and handling pursuant to Section
40059.
(2) Alter the authority of business entities to collect or process
materials that are not solid waste.
(3) Affect any contract right existing on the effective
date of this section January 1, 1999 .