BILL ANALYSIS Ó AB 275 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 275 (Committee on Environmental Safety and Toxic Materials) As Amended August 19, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: | 63-5 | (April 20, |SENATE: |28-9 | (August 31, | | | |2015) | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: E.S. & T.M. SUMMARY: Revises the California Department of Toxic Substances Control's (DTSC) statute of limitations on cost recovery. Specifically, this bill: 1)Revises the state's statute of limitations on the recovery of costs incurred by DTSC related to overseeing or carrying out a response or corrective action to commence within three years after completion of all response or corrective actions have been certified by DTSC or a regional water quality control board (regional board). 2)Requires action for cost recovery for operation and maintenance (O&M) costs to commence within three years after completion of O&M has been certified by DTSC or a regional board. 3)States that the statutes of limitation in this section do not AB 275 Page 2 apply to a cost recovery action brought by a regional board under the Water Code. 4)Deletes the requirement that the Toxic Substances Control Account (TSCA) shall pay any portion of the judgment in excess of the aggregate amount of costs or expenditures apportioned to responsible parties. 5)Deletes reference to Health and Safety Code (H&S) Section 25356.6, which was repealed by SB 1019 (Budget and Fiscal Review Committee), Chapter 30, Statutes of 2012. The Senate amendments: 1)Revise the timeframe for the recovery of costs incurred by DTSC related to overseeing or carrying out a response or corrective action from six years of the initiation of a removal or remedial action to within three years after completion of all response or corrective actions have been certified by DTSC or a regional board. 2)Authorize DTSC to pursue cost recovery for O&M costs associated with response or corrective actions and require cost recovery to be commenced within three years after DTSC has certified the O&M. 3)State that the statutes of limitation in Section 25360.4 do not apply to a cost recovery action brought by a regional board under the Water Code. 4)Make technical changes to remove unnecessary terms, and conform terminology used in H&S Chapters 6.5 and 6.8. AB 275 Page 3 EXISTING LAW: 1)Requires DTSC to commence recovery of the costs of removal or remedial action or related administrative costs within three years after completion of the removal or remedial action has been certified by the department. (H&S Section 25360.4) 2)Requires any party found liable for any costs or expenditures recoverable, 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. (H&S Section 25363) 3)Pursuant to the Carpenter-Presley-Tanner Hazardous Substance Account Act, makes available adequate funds in order to permit the State of California to assure payment of its 10% share of the costs mandated under federal Superfund requirements, Section 104(c)(3) of the federal act (42 United States Code (U.S.C.) Section 9604(c)(3)). (H&S Section 25301) 4)Establishes the TSCA (H&S Section 25173.6), allows the DTSC director to expend federal funds in the TSCA consistent with the requirements specified in Section 114 of the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 (42 U.S.C. Section 9614) (H&S Section 25173.6(d)), and defines the Toxic Substances Control Account as the "State Account." (H&S Section 25324) 5)Establishes the Site Remediation Account (SRA), to be funded by money transferred from the TSCA, and may be expended by DTSC for direct site remediation costs consistent with the requirements of Section 114(c) of the federal act (42 U.S.C. Section 9614(c)). (H&S Section 25337) AB 275 Page 4 FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. COMMENTS: State Audit Report: On August 7, 2014, the Bureau of State Audits (BSA) released a report on DTSC's cost recovery. The BSA found that long-standing shortcomings with DTSC's recovery of costs have resulted in millions of dollars in unbilled and billed but uncollected cleanup costs dating back to 1987. DTSC may not be able to recover all of its outstanding costs due to several factors, including when the federal and state statutes of limitations for cost recovery have expired on projects. DTSC's preliminary determinations indicated that the statute of limitations had expired for 76 projects with a total of $13.4 million in outstanding costs, which DTSC may not recover. According to the BSA, "under federal law, an initial action to recover costs from responsible parties must commence within three years of completing removal activities, or within six years of beginning the implementation of remedial activities. Similarly, state law requires the initiation of a cost recovery action within three years of [DTSC] certifying the completion of a cleanup activity. According to a [DTSC] attorney, for the purposes of recovering costs, [DTSC] can file an action against a responsible party under federal law, state law, or upon a provision in a contract. Therefore, she explained, if the statute of limitations has expired for one, [DTSC] may still pursue cost recovery under the other two if they have not expired." Orphan funding: According to DTSC, "Both US [United States] EPA [Environmental Protection Agency] and DTSC have identified sites AB 275 Page 5 which represent an immediate threat to public health and environment and/or for which no viable responsible parties have been identified to address these projects. US EPA's list is referred to as the Federal Superfund List and the DTSC's list is referred to as the State Orphan's list. "Annually, DTSC's budget contains a line item that covers cleanup activities for both Federal Superfund match and State Orphan sites. For FY [Fiscal Year] 12/13 roughly $9.2 million was allocated. Each year the amount increases slightly. Federal regulations require that the State must provide a 10% match for the construction of final remedy and initial operation and maintenance costs. After a specific time period, then the State must assumed 100% of the costs to operate that system. This same funding allocation covers the State Orphan sites as well. "It is anticipated that within the next 2-3 years, the amount of money needed to cover our Federal Superfund match obligations and State's orphan funding needs will be more than what is currently appropriated annually." Need for this bill: Under state law, the state's TSCA is required to pay any portion of the judgment in excess of the amount of the apportioned costs to responsible parties. That means DTSC's general fund, which is used for cleanup, is then used to partially cover costs that the responsible party(ies), under federal law, is compelled to pay. When cost recovery is pursued in state court, it puts the burden on TSCA to help fund the judgment, which puts taxpayers on the hook to partially fund the cleanup and creates an unnecessary cost burden on the state's already underfunded accounts for toxic waste site cleanup. The requirement that taxpayer dollars support cleanup costs is inconsistent with federal law. Under CERCLA, there is no federal taxpayer funding required or available to support the judgment. Therefore, DTSC currently pursues many, perhaps most of its cost AB 275 Page 6 recovery cases through federal court under CERCLA. Though DTSC tends to pursue cost recovery under CERCLA more often, the state's statute of limitations would be more desirable to use to pursue cost recovery if the state's responsibility to pay were eliminated. With these changes to the state's statute of limitations, DTSC will be more apt to pursue cases through state court under state law. While many cases will likely continue to be pursued under CERCLA, having more flexibility to seek cost recovery through state court will allow the department to pursue more cases more expeditiously and have a greater success rate recovering its costs before statutes of limitations expire. Analysis Prepared by: Paige Brokaw / E.S. & T.M. / (916) 319-3965 FN: 0001484