Amended in Senate May 27, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 275

Introduced by Committee on Environmental Safety and Toxic Materials (Assembly Members Alejo (Chair), Gonzalez, McCarty, and Ting)

February 11, 2015

An act to amend Sections 25360.4, 25363, and 25366.5 of the Health and Safety Code, relating to hazardous substances.

LEGISLATIVE COUNSEL’S DIGEST

AB 275, as amended, Committee on Environmental Safety and Toxic Materials. Hazardous substances: liability recovery actions.

(1) Existing law, the Carpenter-Presley-Tanner Hazardous Substance Account Act, imposes liability for hazardous substances removal or remedial actions and requires the Attorney General to recover from the liable person, as defined, certain costs incurred by the Department of Toxic Substances Control or a California regional water quality control board, upon the request of the department or regional board. The act authorizes, except as specified, a party found liable for any costs or expenditures recoverable under the act begin insert for those actions end insert to establish, as specified, that only a portion of those costs or expenditures are attributable to the party, and begin delete be required end delete begin insert requires the party end insert to pay only for that portion. If each party does not establish begin delete it’s end delete begin insert its end insert liability, the act requires begin delete the end delete begin insert a end insert court to apportion those costs or expenditures, as specified, among the defendants and the remaining portion of the judgment is required to be paid from the Toxic Substances Control Account. Existing law authorizes the money deposited in the Toxic Substances Control Account in the General Fund to be appropriated to the Department of Toxic Substances Control for specified purposes, including the payment of begin delete removal and remedial actions end delete begin insert the costs end insert incurred by the begin delete state. end delete begin insert state for those actions. end insert

This bill would begin insert specifically apply those provisions to response and corrective actions, and would end insert delete the requirement that the remaining portion of a judgment for costs and expenditures that is not apportioned among the liable persons be paid from that account.

(2) The act requires an action brought pursuant to it for the recovery of the costs of a removal or remedial action to be commenced within 3 years after completion of the removal or remedial action has been certified by the department.

This bill would, except as provided, instead allow begin delete an end delete begin insert a response or corrective end insert action to be commenced either within that 3-year period begin delete or within 6 years of the initiation of a removal or remedial action, whichever date is later. end delete begin insert or, if operation and maintenance is required as part of the response or corrective action, within three years after completion of operation and maintenance has been certified by the department or a regional board. end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 25360.4 of the Health and Safety Code
is amended to read:

25360.4.  

(a) (1)  begin insert (A) end insert begin insert   end insert Except as provided in begin insert subparagraph (B)
and end insert paragraph (2), an action under Section 25360 for the recovery
of begin delete the costs of removal or remedial action end delete begin insert costs end insert incurred by the
department begin delete from the state account, or any other source end delete begin insert or a
regional board in carrying out or overseeing a response or
corrective action pursuant to this chapter or Chapter 6
(commencing with Section 25100), or as otherwise end insert authorized by
law, or for the recovery of begin delete administrative end delete begin insert oversight end insert costs incurred
by the department in connection with a begin delete removal or remedial end delete
begin insert response or corrective end insert action performed by the begin delete department end delete
begin insert department, a regional board, end insert or begin delete by end delete a responsible party, shall be
commenced within three years after completion of the begin delete removal or
remedial end delete begin insert response or corrective end insert action has been certified by the
department, begin delete or within six years of the initiation of a removal or
remedial action, whichever date is later. end delete begin insert or a regional board. end insert

begin insert

(B) If operation and maintenance is required as part of the
response or corrective action, the action for recovery shall be
commenced within three years after completion of operation and
maintenance has been certified by the department or a regional
board.

end insert

(2) No action described in paragraph (1) may be brought that,
as of December 31, 2015, had not been commenced by the
department within three years after the certification of the
completion of the removal or remedial action.

(b) An action under subdivision (c) of Section 25352 for costs
incurred by the department for the purposes specified in subdivision
(a) or (b) of Section 25352 shall be commenced within three years
after certification by the department of the completion of the
activities authorized under subdivisions (a) and (b) of Section
25352.

(c) In an action described in subdivision (a) or (b) for recovery
of begin delete the costs of a removal action, a remedial action, administrative end delete
begin insert response or corrective action costs, oversight end insert costs, or damages,
where the court has entered a judgment for begin delete these end delete past costs or
damages, the court shall also enter an order reserving jurisdiction
over the case and the court shall have continuing jurisdiction to
determine any future liability and the amount of the future liability.
The department begin insert or regional board end insert may immediately enforce the
judgment for past costs and damages. The department begin insert or the
regional board end insert may apply for a court judgment for begin delete future end delete begin insert further end insert
costs and damages that have been incurred during the begin delete removal and
remedial actions end delete begin insert response or corrective action, operation and
maintenance, end insert or during the performance of the activities authorized
by Section 25352, but the application shall be made not later than
three years after the certification of completion of the begin delete actions or
activities. end delete begin insert response or corrective action, operation and
maintenance, or activities authorized pursuant to Section 25352. end insert

(d) An action may be commenced under Section 25360 or
subdivision (c) of Section 25352 at any time prior to expiration of
the applicable begin delete limitation end delete begin insert limitations end insert period provided for by this
section.

begin delete

SEC. 2.  

Section 25363 of the Health and Safety Code is
amended to read:

25363.  

(a) Except as provided in subdivision (e), a party found
liable for costs or expenditures recoverable under this chapter who
establishes by a preponderance of the evidence that only a portion
of those costs or expenditures are attributable to that party’s
actions, shall be required to pay only for that portion.

(b) Except as provided in subdivision (e), if the trier of fact finds
the evidence insufficient to establish each party’s portion of costs
or expenditures under subdivision (a), the court shall apportion
those costs or expenditures, to the extent practicable, according to
equitable principles, among the defendants.

(c) The standard of liability for costs or expenditures recoverable
pursuant to this chapter is strict liability.

(d) A person who has incurred removal or remedial action costs
in accordance with this chapter or the federal act may seek
contribution or indemnity from any person who is liable pursuant
to this chapter. An action to enforce a claim may be brought as a
cross-complaint by any defendant in an action brought pursuant
to Section 25360 or this section, or in a separate action after the
person seeking contribution or indemnity has paid removal or
remedial action costs in accordance with this chapter or the federal
act. A plaintiff or cross-complaint seeking contribution or
indemnity shall give written notice to the director upon filing an
action or cross complaint under this section. In resolving claims
for contribution or indemnity, the court may allocate costs among
liable parties using the appropriate equitable factors.

(e) Notwithstanding this chapter, a response action contractor
who is found liable for any costs or expenditures recoverable under
this chapter and who establishes by a preponderance of the
evidence that only a portion of those costs or expenditures are
attributable to the response action contractor’s actions shall be
required to pay only that portion of the costs or expenditures
attributable to the response action contractor’s actions.

end delete

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 25363 of the end insert begin insert Health and Safety Code end insert begin insert is
amended to read: end insert

25363.  

(a) Except as provided in subdivision begin delete (f), any end delete begin insert (e), a end insert
party found liable for begin delete any end delete costs begin delete or expenditures end delete recoverable under
this chapter who establishes by a preponderance of the evidence
that only a portion of those costs begin delete or expenditures end delete are attributable
to that party’s actions, shall be required to pay only for that portion.

(b) Except as provided in subdivision begin delete (f), end delete begin insert (e), end insert if the trier of fact
finds the evidence insufficient to establish each party’s portion of
costs begin delete or expenditures end delete under subdivision (a), the court shall
apportion those begin delete costs or expenditures, end delete begin insert costs, end insert to the extent
practicable, according to equitable principles, among the
defendants.

begin delete

(c)  The state account shall pay any portion of the judgment in
excess of the aggregate amount of costs or expenditures
apportioned under subdivisions (a) and (b).

(d)

end delete

begin insert (c) end insert  The standard of liability for begin delete any end delete costs begin delete or expenses end delete
recoverable pursuant to this chapter is strict liability.

begin delete

(c) Any

end delete

begin insert (d) end insert begin insert   end insert begin insert A end insert person who has incurred begin delete removal or remedial end delete begin insert response
or corrective end insert action costs in accordance with this begin delete chapter end delete begin insert chapter,
Chapter 6.5 (commencing with Section 25000), end insert or the federal act
may seek contribution or indemnity from any person who is liable
pursuant to this begin delete chapter, except that no claim may be asserted
against a person whose liability has been determined and which
has been or is being, fully discharged pursuant to Section 25356.6,
or against a person who is actively participating in a pending
apportionment proceeding pursuant to Section 25356.6. end delete begin insert chapter. end insert
An action to enforce a claim may be brought as a cross-complaint
by any defendant in an action brought pursuant to Section 25360
or this section, or in a separate action after the person seeking
contribution or indemnity has paid begin delete removal or remedial end delete begin insert response
or corrective end insert action costs in accordance with this begin delete chapter end delete begin insert chapter,
Chapter 6.5 (commencing with Section 25000), end insert or the federal act.
begin delete Any end delete begin insert A end insert plaintiff or begin delete cross complainant end delete begin insert cross-complainant end insert seeking
contribution or indemnity shall give written notice to the director
upon filing an action or begin delete cross complaint end delete begin insert cross-complaint end insert under
this section. In resolving claims for contribution or indemnity, the
court may allocate costs among liable parties using begin delete those equitable
factors which are appropriate. end delete begin insert appropriate equitable factors. end insert

begin delete

(f)

end delete

begin insert (e) end insert  Notwithstanding this chapter, begin delete any end delete begin insert a end insert response action
contractor who is found liable for any costs begin delete or expenditures end delete
recoverable under this chapter and who establishes by a
preponderance of the evidence that only a portion of those costs
begin delete or expenditures end delete are attributable to the response action contractor’s
begin delete actions, end delete begin insert actions end insert shall be required to pay only that portion of the
costs begin delete or expenditures end delete attributable to the response action contractor’s
actions.

SEC. 3.  

Section 25366.5 of the Health and Safety Code is
amended to read:

25366.5.  

(a) A public agency operating a household hazardous
waste collection program or a person operating such a program
under a written agreement with a public agency, or, for material
received from the public as used oil, a person operating a certified
used oil collection center as provided in Section 48660 of the
Public Resources Code, shall not be held liable in a cost recovery
action brought pursuant to Section 25360, including, but not limited
to, an action to recover the fees imposed by Section 25343 or an
action brought pursuant to subdivision (d) of Section 25363, for
waste that has been properly handled and transported to an
authorized hazardous waste treatment, storage, or disposal facility
at a location other than that of the collection program.

(b) For purposes of this section, “household hazardous waste
collection program” means a program or facility, specified in
Section 25218.1, in which hazardous wastes from households and
conditionally exempt small quantity generators, are collected and
ultimately transferred to an authorized hazardous waste treatment,
storage, or disposal facility.

(c) Except as provided in subdivision (a), this section does not
affect or modify the obligations or liabilities of a person imposed
pursuant to state or federal law.