BILL ANALYSIS Ó AB 2442 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2442 (Gordon) As Amended August 20, 2014 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |52-22|(May 8, 2014) |SENATE: |22-12|(August 25, | | | | | | |2014) | ----------------------------------------------------------------- Original Committee Reference: JUD. SUMMARY : Provides the State Water Resources Control Board (State Water Board) and Regional Water Quality Control Boards (Regional Water Boards) with protection from civil liability related to necessary actions for water quality cleanup actions. The Senate amendments remove the exemption from liability for actions that were performed in a grossly negligent manner. EXISTING LAW : 1)Allows the State and Regional Water Boards to investigate actual or suspected waste discharges that threaten water quality. Provides that if no viable responsible party or discharger is identified for a polluted site, the State or Regional Water Boards may contract for the clean up. 2)Provides limited liability immunity for the Department of Toxic and Substance Control to enter upon any lands for the purpose of taking removal or remedial action. 3)Provides limited liability immunity for a public agency and its employees or agents for injury or property damage caused by actions taken by a public safety employee while responding to a hazardous substance release believed to be an imminent peril to public health or safety. 4)Provides that a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity, or a public employee, or any other person. Provides that the liability of a public entity, as specified, is subject to any immunity of the public entity provided by statute and is subject to any defenses that would be available to the public entity if it were a private person. AB 2442 Page 2 AS PASSED BY THE ASSEMBLY , this bill provided the State Water Board and Regional Water Boards with explicit protection from civil liability related to water quality cleanup actions. Specifically, this bill: 1)Provided that the protection from liability for the State and Regional Water Boards would apply to any authorized person in connection with any water contamination investigation, cleanup, abatement, or other remedial work. 2)Excluded from liability protection actions that were performed in a grossly negligent manner. 3)Provided that the limitation on State and Regional Water Boards' liability apply to a cause of action in a civil complaint filed after January 1, 2015. FISCAL EFFECT : None COMMENTS : Need for the bill: According to the State Water Board, the sponsor of this legislation, "Currently, the Water Boards often are reluctant to fully exercise their authority to investigate and/or clean up water pollution problems that may threaten public health and the environment due to liability concerns. "Under current law, the Water Boards can perform, or contract for, the investigation, cleanup, abatement, or remedial work that is required to address waste discharges that have polluted, or threaten to pollute, waters of the State? However, the Water Boards often are reluctant to exert their authority to investigate and/or clean up water pollution problems that may threaten public health or the environment due to liability concerns including: 1) potential liability claims that the Water Boards' actions at a site makes them a responsible party and that their limited actions at a site do not fully protect all affected persons, 2) claims for reimbursement of incidental property damage, or 3) potential trespass actions that may arise due to the Water Boards' investigations or cleanups. Thus, even when the Water Boards are faced with a severe pollution problem and there is no apparent financially viable responsible party, the Water Boards are likely to decline to act due to liability concerns." AB 2442 Page 3 Liability of cleanup actions: This legislative proposal would provide the State and Regional Water Boards with explicit protection from civil liability related to investigating and cleaning up water pollution. This would remove a barrier in current law that deters the Water Boards from taking actions to investigate, prevent, or clean up pollution. The proposal would clarify that the liability protection applies to actions by the Water Boards to investigate and clean up any discharges that threaten water quality. Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916) 319-3965 FN: 0005185