BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   SB 841|
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                                 THIRD READING


          Bill No:  SB 841
          Author:   Wolk (D)
          Amended:  5/12/11
          Vote:     21

           
           SENATE ENVIRONMENTAL QUALITY COMMITTEE  :  7-0, 5/9/11
          AYES:  Simitian, Strickland, Blakeslee, Hancock, Kehoe, 
            Lowenthal, Pavley


           SUBJECT  :    Solid waste:  enterprises:  contracts

           SOURCE  :     Republic Services
                      Waste Management


           DIGEST  :    This bill prohibits the enforcement of an 
          indemnity obligation that requires a solid waste enterprise 
          to defend and hold harmless the local agency in connection 
          with the local agency's imposition of fees, charges, 
          levies, exactions, or assessments that are found by final 
          judgment of a court to have been imposed in violation of 
          Article XIII C or XIII D of the California Constitution or 
          that require a solid waste enterprise to refund certain 
          fees.  This bill only applies to a provision, term, 
          condition, or requirement contained in an ordinance, 
          contract, franchise, license, permit, or other entitlement 
          or right adopted, entered into, issued, or granted on or 
          after July 1, 2012.  This bill becomes operative on July 1, 
          2012.

           ANALYSIS  :    
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          Existing law:

          1. Under the California Integrated Waste Management Act of 
             1989 (Public Resources Code Section 40000 et seq.):
             A.    Authorizes a local agency to determine (1) aspects 
                of solid waste handling, including but not limited 
                to, frequency of collection, means of collection and 
                transportation, level of services, charges and fees, 
                and nature, location, and extent of providing solid 
                waste handling services; and (2) whether the services 
                are to be provided by means of nonexclusive 
                franchise, contract, license, permit, or otherwise, 
                either with or without competitive bidding, and under 
                terms and conditions prescribed by the governing body 
                of the local agency by resolution or ordinance.  
                (Section 40059)

             B.    Contains various requirements relating to 
                integrated waste management, and requires each city 
                or county source reduction and recycling element to 
                include an implementation schedule that shows a city 
                or county must divert 25 percent of solid waste from 
                landfill disposal or transformation by January 1, 
                1995, through source reduction, recycling, and 
                composting activities, and must divert 50 percent of 
                solid waste on and after January 1, 2000.  (Section 
                41780).  Administrative civil penalties may be 
                imposed upon a local agency of up to $10,000 per day 
                until the local agency implements its source 
                reduction and recycling element or its household 
                hazardous waste element.  (Section 41850)

             C.    Contains requirements relating to an indemnity 
                obligation due to a local agency's failure to 
                establish and maintain a source reduction and 
                recycling element, and to meet the above solid waste 
                diversion requirements (Section 40059.1).

          2. Sets numerous requirements relating to indemnity (Civil 
             Code Section 2772 et seq.).  Indemnity is "a contract by 
             which one engages to save another from a legal 
             consequence of the conduct of one of the parties, or of 
             some other person."

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          3. Under Articles XIII C and XIII D of the California 
             Constitution, sets various requirements relating to 
             assessments, fees, and taxes enacted by voter approved 
             Proposition 218 (November 5, 1996, election) and 
             Proposition 26 (November 2, 2010, election).

          This bill, under the California Integrated Waste Management 
             Act of 1989:

          1. Defines "indemnity obligation" to mean an indemnity 
             obligation directly or indirectly related to a local 
             agency's failure to obtain voter or property owner 
             approval that may be required by Articles XIII C or 
          XIII D of the California Constitution if that indemnity 
             obligation is expressly assumed by or imposed upon the 
             solid waste enterprise, including by "ordinance, 
             contract, franchise, license, permit, or other 
             entitlement or right, for the benefit of a local 
             agency."

          2. Requires an indemnity obligation to be null and void, 
             and not enforceable, if it does either of the following:

             A.    Requires a solid waste enterprise to defend and 
                hold harmless the local agency in connection with the 
                local agency's imposition of fees, charges, levies, 
                exactions, or assessments that are found by final 
                judgment of a court to have been imposed in violation 
                of Articles XIII C or XIII D of the California 
                Constitution.

             B.    Requires a solid waste enterprise to refund fees 
                to its customers if the fees are collected on behalf 
                of the local agency by the solid waste enterprise and 
                have been remitted by the solid waste enterprise to 
                the local agency and if the fees are found by a final 
                judgment of a court to have been imposed in violation 
                of Article XIII C or Article XIII D of the California 
                Constitution.

          3. Requires an indemnity obligation to be subject to the 
             above null and void provision if it meets either of the 
             following conditions:

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             A.    The indemnity obligation is authorized or required 
                by a provision, term, condition, or requirement 
                contained in an ordinance, contract, franchise, 
                license, permit, or other entitlement or right 
                adopted, entered into, issued, or granted by a local 
                agency for solid waste handling services, including 
                the recycling, processing, or composting of solid 
                waste.

             B.    The indemnity obligation is authorized or required 
                in a request for bids or proposals in connection with 
                a contract or franchise specified above.

          4. Provides that provisions of this bill are not subject to 
             waiver, and any attempted waiver must be null and void 
             as against public policy.

          5. Provides that this bill cannot be intended to do any of 
             the following:  (a) add to or expand local agency 
             authority to determine aspects of solid waste collection 
             and handling; (b) alter the authority of business 
             entities to collect or process materials that are not 
             solid waste; or c) determine whether or not a fee, levy, 
             assessment, or exaction requires voter or property owner 
             approval by Articles XIII C or XIII D of the California 
             Constitution.

          6. Requires this bill to only apply to a provision, term, 
             condition, or requirement contained in an ordinance, 
             contract, franchise, license, permit, or other 
             entitlement or right adopted, entered into, issued, or 
             granted on or after July 1, 2012.

          7. Contains related legislative intent. 

          8. Becomes operative on July 1, 2012.

           Comments  

           Previous attempts by solid waste interests to seek 
          indemnification restrictions  .  SB 1179 (Polanco), 1997-98 
          Session, set restrictions on the enforceability of an 
          indemnity obligation for solid waste collection.  Governor 

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          Wilson vetoed the bill, noting that "To assert that solid 
          waste management enterprises cannot indemnify losses based 
          upon their own breach without the state's intervention to 
          negotiate the terms of the agreement is ludicrous on its 
          face."  According to this veto message, "When government 
          ventures into the arena of contractual negotiations it is 
          generally to protect an obviously disadvantaged party.  In 
          this instance it appears that the state is being asked to 
          protect the industry from itself.  Indeed there is 
          significant evidence that the industry is responsible for 
          the proliferation of waste diversion indemnification 
          agreements.  Various solid waste management providers have 
          offered to indemnify prospective clients to gain an 
          advantage in a competitive marketplace."

          SB 1340 (Polanco), Chapter 987, Statutes of 1998, set 
          requirements relating to an indemnity obligation due to a 
          local agency's failure to establish and maintain a source 
          reduction and recycling element, and meet solid waste 
          diversion requirements.  The bill prohibited an indemnity 
          obligation from being enforceable against a solid waste 
          enterprise until the local agency has affirmative sought in 
          good faith, all administrative relief or demonstrates good 
          cause for not pursuing that administrative relief.  
          However, any penalty must be apportioned in accordance with 
          the percentage of fault of the local agency and the solid 
          waste enterprise.  The bill addressed court interpreter 
          compensation issues when approved by the Senate, and these 
          provisions were stricken in the Assembly where the 
          indemnification issues were added.  

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT  :   (Verified  5/11/11)

          Republic Services (co-source)
          Waste Management (co-source)
          Inland Empire Disposal Association
          Los Angeles County Waste Management Association
          Solid Waste Association of Orange County
          
           ARGUMENTS IN SUPPORT  :    The author is concerned that since 
          passage of Proposition 218 and Proposition 26 local 

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          agencies may require that "solid waste handling firms 
          indemnify these local agencies if their franchises and 
          other fees are successfully challenged in court.  As a 
          matter of public policy indemnity should not be provided 
          for unlawful conduct."

          The author is responding to this concern by requiring an 
          indemnity obligation to be null and void, and not 
          enforceable, if it either (1) requires a solid waste 
          enterprise to defend and hold harmless the local agency in 
          connection with the local agency's imposition of fees, 
          charges, levies, exactions, or assessments that are found 
          by a court to have been imposed in violation of Articles 
          XIII C or XIII D of the California Constitution; or (2) 
          requires a solid waste enterprise to refund fees to its 
          customers if the fees are collected on behalf of the local 
          agency by the solid waste enterprise and have been remitted 
          by the solid waste enterprise to the local agency.

          "SB 841 is consistent with existing policy underlying 
          Public Resources Code section 40059.1, which establishes 
          reasonable limits on the form of indemnity obligations 
          local agencies can require from their solid waste 
          franchisees.  Furthermore, SB 841 does not affect a local 
          agencies right to impose fees on waste haulers."


          DLW:mw  5/12/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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