BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2748


                                                                    Page  1





          Date of Hearing:  June 2, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 2748  
          (Gatto) - As Amended June 1, 2016


                              As Proposed to be Amended


          SUBJECT:  TOXIC CHEMICALS: CLAIMS FOR PERONAL INJURY AND DAMAGE  
          TO PROPERTY


          KEY ISSUES:


          1)SHOULD STATE LAW PROHIBIT A PAYMENT OR REIMBURSEMENT MADE IN  
            CONNECTION WITH ENVIRONMENTAL DISASTERS AT THE ALISO CANYON  
            NATURAL GAS WELL OR THE EXIDE TECHNOLOGIES BATTERY PLANT BY  
            THE RESPONSIBLE POLLUTER BEING CONDITIONED UPON RELEASE OF  
            THAT POLLUTER FROM CURRENT AND FUTURE LIABILITY TO THE  
            RECIPIENT OF THE PAYMENT OR REIMBURSEMENT AND MAKE SUCH A  
            CONDITION IN A CONTRACT UNENFORCEABLE AS A MATTER OF PUBLIC  
            POLICY?


          2)SHOULD THE STATUTE OF LIMITATIONS FOR FILING A CIVIL ACTION  
            BASED UPON INJURIES FROM TOXIC CHEMICALS AT THE ALISO CANYON  
            NATURAL GAS WELL OR THE EXIDE TECHNOLOGIES BATTERY PLANT BE  
            EXTENDED BY ONE YEAR SO THAT A CLAIM MUST BE FILED WITHIN  
            THREE YEARS OF THE DATE OF INJURY OR DEATH, OR THREE YEARS  
            FROM THE DATE WHEN THE INJURY OR DEATH IS KNOWN, OR REASONABLY  








                                                                    AB 2748


                                                                    Page  2





            SHOULD BE KNOWN TO HAVE BEEN CAUSED BY SUCH EXPOSURE?


          3)SHOULD STATE LAW SPECIFY THAT, IN ANY ACTION FOR PRIVATE  
            NUISANCE AGAINST AN ENVIRONMENTAL POLLUTER DEFENDANT ARISING  
            OUT OF ENVIRONMENTAL DISASTERS AT THE ALISO CANYON NATURAL GAS  
            WELL OR THE EXIDE TECHNOLOGIES BATTERY PLANT FOR WHICH THE  
            DEFENDANT IS ADJUDGED TO BE CIVILLY LIABLE, THE COURT MAY  
            AWARD REASONABLE ATTORNEYS' FEES TO THE PREVAILING PLAINTIFF? 


                                      SYNOPSIS


          This bill is one of many to be introduced this legislative  
          session in response to the rupture of the Aliso Canyon natural  
          gas well adjacent to the upscale San Fernando Valley community  
          of Porter Ranch that was detected in October of 2015 and not  
          sealed until mid-February of 2016 and the Exide Technologies  
          facility located in the City of Vernon, about five miles  
          southeast of downtown Los Angeles.  Recognizing the inherent  
          difficulty of pursuing legal action in response to environmental  
          disasters like the one that occurred at Aliso Canyon and Exide,  
          this bill, as proposed to be amended, provides three remedies  
          that will assist persons living in Porter Ranch or near Exide  
          who are injured or killed by toxic chemicals.  First, it  
          provides that a payment or reimbursement made in connection with  
          one of those two environmental disasters shall not be  
          conditioned upon the release by the recipient of any claim  
          unrelated to the environmental disaster or all future claims, or  
          both.  Second, it extends the statute of limitations for a civil  
          action for injuries and deaths caused by toxic chemicals at  
          those two facilities.  The statute of limitations on a civil  
          action generally begins to run at the time when the injurious  
          act is committed ("after the cause of action shall have  
          accrued"), for injuries and deaths caused by toxic chemicals,  
          the statute begins to run at either the time of the injury, the  
          date when the plaintiff either becomes aware that his or her  
          injury was caused by a chemical, or the date when the plaintiff  








                                                                    AB 2748


                                                                    Page  3





          reasonably should have become aware of such causation, whichever  
          is later.  This bill seeks to extend the statute of limitations  
          for filing a civil action based upon injuries from toxic  
          chemicals at these two facilities to three years of the date  
          injury or date of discovery of the connection between the injury  
          and the exposure to the toxin.  Third, this bill provides that  
          in any action for private nuisance against an environmental  
          polluter defendant arising out of one of these two environmental  
          disasters for which the defendant has been adjudged civilly  
          liable, the court, upon motion, may award reasonable attorneys'  
          fees to a prevailing plaintiff against the defendant.  As  
          currently in print this bill is supported by a large coalition  
          of labor, environmental, and consumer groups and opposed by a  
          large coalition of industry and business groups.  It is unknown  
          how and whether the author's proposed amends will affect the  
          bill's support and opposition.  




          SUMMARY:  Proposes several remedies that will assist persons  
          living near the Aliso Canyon natural gas well or the Exide  
          Technologies Plant who are injured or killed by toxic chemicals.  
           Specifically, this bill:  


          1)Provides that a temporary or final settlement of any kind made  
            in connection with the environmental disasters at the Aliso  
            Canyon natural gas well or the Exide Technologies Plant by the  
            responsible polluter or any agent or entity related to the  
            responsible polluter, to any claimant, shall release the  
            responsible polluter, agent and/or entity from liability to  
            the claimant only for acts, omissions or injuries that are  
            believed by the claimant to have occurred prior to the date of  
            the settlement, and shall not release any claim that is  
            unknown to the claimant at the time of the settlement or that  
            occurs subsequent to the settlement, or that is unrelated to  
            the environmental disaster.  
          2)Provides that a condition described in 1), above, in a  








                                                                    AB 2748


                                                                    Page  4





            settlement agreement is void and unenforceable as a matter of  
            public policy.


          3)Extends the statute of limitations for filing a civil action  
            for injury, illness, or death caused by exposure to a  
            hazardous material or toxic substance in connection with the  
            environmental disasters at the Aliso Canyon natural gas well  
            or the Exide Technologies Plant from two years to three years  
            from the date of injury, illness, or death; or the date when  
            the plaintiff becomes aware of, or reasonably should have  
            become aware of sufficient facts to put a reasonable person on  
            inquiry notice that the injury, illness, or death was caused  
            or contributed to by the wrongful act of another, whichever  
            occurs later.


          4)Provides that in any action for private nuisance against an  
            environmental polluter defendant arising out of the  
            environmental disasters at the Aliso Canyon natural gas well  
            or the Exide Technologies Plant for which the defendant has  
            been adjudged civilly liable, the court, upon motion, may  
            award reasonable attorneys' fees to a prevailing plaintiff  
            against the defendant.


          5)Makes legislative findings and declares that a special law is  
            necessary and that a general law cannot be made applicable  
            within the meaning of Section 16 of Article IV of the  
            California Constitution to achieve just and efficient results  
            in civil litigation involving the unique circumstances of  
            damages resulting from specific environmental disasters within  
            the state.


          EXISTING LAW:  


          1)Provides that an action for assault, battery, or injury to, or  








                                                                    AB 2748


                                                                    Page  5





            for the death of, an individual caused by the wrongful act or  
            neglect of another must be brought within two years.  (Code of  
            Civil Procedure (CCP) Section 335.1.) 


          2)Provides that an action for trespass upon or injury to real  
            property must be brought within three years.  (CCP Section 338  
            (b).)


          3)Provides that when a trespass is of a permanent nature, the  
            cause of action accrues when the trespass is first committed  
            and that all damages, past and prospective, are recoverable in  
            one action, and the entire cause of action accrues when the  
            injury is suffered or the trespass committed.  (Field-Escandon  
            v. DeMann (1988) 204 Cal.App.3d 228, 233.)


          4)Specifies that all contracts which have for their object,  
            directly or indirectly, to exempt any one from responsibility  
            for his own fraud, or willful injury to the person or property  
            of another, or violation of law, whether willful or negligent,  
            are against the policy of the law.  (Civil Code Section 1668.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  Aliso Canyon Gas Leak.  A rupture of a natural gas  
          well in the Aliso Canyon complex owned by the Southern  
          California Gas Company and adjacent to the upscale San Fernando  
          Valley community of Porter Ranch was detected in October of  
          2015.  It poured toxic fumes into the surrounding neighborhoods  
          for months until it was permanently sealed in mid-February of  
          2016.  According to the Environmental Defense Fund, 96,000  
          metric tons of methane, a powerful climate pollutant, are  
          estimated to have been released into the atmosphere as a result  
          of the leak, having the same 20-year climate impact as burning  








                                                                    AB 2748


                                                                    Page  6





          nearly one billion gallons of gasoline.   
          (  https://www.edf.org/climate/aliso-canyon-leak-sheds-light-nation 
          al-problem  .)  In the months following detection of the leak,  
          thousands of residents were relocated to temporary housing.   
          Many reported health issues such as headaches, nausea,  
          nosebleeds and dizziness.  


          At this point, it is difficult to know what the long-term  
          effects of the nearly six-month leak on the local environment  
          and population will be.  According to the Los Angeles Times,  
          county Supervisor Michael D. Antonovich has stated that before  
          moving back, residents should know whether the methane plumes  
          left any "residue" outside or in their homes and United States  
          Senator Barbara Boxer has said the tests should be conducted by  
          a private organization, the U.S. Environmental Protection Agency  
          or the South Coast Air Quality Management Disrict.  
          (  http://www.latimes.com/local/lanow/la-me-porter-canyon-gas-leak- 
          20160215-story.html  )  Researchers at USC intend to study the  
          long-term health effects of the gas leak on area residents.   
          Professor Ed Avol, professor of clinical medicine in the  
          Department of Preventive Medicine of the Keck School of Medicine  
          at USC, an expert on respiratory health and the public health  
          impacts of air pollution, explained the components of the  
          chemical soup emitted at Aliso Canyon and the complexity of  
          determining the health effects of those chemicals on area  
          residents:


               Right now, we don't think the methane exposure is as much  
               an issue as some of the other contaminants and the  
               potentially toxic chemicals that may come from byproduct  
               reactions. . . . Methane makes about 90 percent of natural  
               gas. Methane and other chemicals emitted in natural gas can  
               react in the open-air environment and create other gases  
               and chemicals, such as hydrogen sulfide. . . . Methyl  
               mercaptans and other odor markers can break down to form  
               other chemicals in the atmosphere. It is these mercaptans  
               and their possible byproducts that may be a health concern.  








                                                                    AB 2748


                                                                    Page  7





                . . . [W]e wonder if there are long-term, low-level  
               effects associated with extended exposure that are not  
               being followed or being seriously considered. We do not  
               believe these have been systematically addressed. . . . The  
               issues we usually consider run the whole gamut from  
               respiratory to cardiovascular to potentially neurological.  
               Stress is also a concern. If there is a lot of stress, it  
               triggers generic inflammation mechanisms in your body,  
               which may lead to physical biological responses.




          Regarding the number of people directly affected by the leak,  
          Southern California Public Radio (KPCC) reported that nearly  
          8,000 households were relocated during the gas leak and as of  
          mid-March, 2016, were still living in temporary housing.   
           http://www.scpr.org/news/2016/03/18/58662/porter-ranch-judge-give 
          s-displaced-one-more-week-o/  




          Meanwhile, numerous civil actions have been filed by Porter  
          Ranch residents and property owners against the operator of the  
          well, Southern California Gas Company, because of personal  
          injuries and property damage alleged to have been caused by the  
          gas leak.  Given the fact that the long-term effects of the  
          chemical exposure are largely unknown, residents of Porter Ranch  
          may not know for years how and if they have been injured by the  
          gas leak.


          Exide Technologies Facility.  Exide Technologies is located in  
          the City of Vernon, about five miles southeast of downtown Los  
          Angeles.  The facility occupies 15 acres in a heavily industrial  
          region with surrounding residential areas.  Facility operations  
          included recycling lead-bearing scrap materials obtained from  
          spent lead-acid batteries.  This facility operated under an  








                                                                    AB 2748


                                                                    Page  8





          interim status for over 30 years.  During that time, inspectors  
          documented more than 100 violations, including lead and acid  
          leaks, an overflowing pond of toxic sludge, enormous cracks in  
          the floor and hazardous levels of lead in the soil outside.  


          The Department of Toxic Substance Control (DTSC) permanently  
          suspended operations at Exide in 2014 and the facility closed in  
          2015 after DTSC notified Exide that its application for a new  
          permit would be denied.  The DTSC then ordered Exide to test and  
          clean up residential properties and conducted its own testing.


          The DTSC's analysis indicates that releases from the facility  
          deposited lead dust across an area of southeast Los Angeles  
          County, resulting in contamination extending 1.7 miles from the  
          facility and impacting up to 10,000 properties, including  
          residences, parks, and schools.  The South Coast Air Quality  
          Management District also cited the facility numerous times, and  
          reported that arsenic emissions from Exide created an elevated  
          risk of cancer for as many as 11,000 people in the area  
          stretching from Boyle Heights to Huntington Park.  


          In August 2015, the Legislature and the Governor approved $7  
          million of emergency funding to test up to 1,500 residential  
          properties, parks, schools, and daycare centers in the  
          surrounding community; develop a comprehensive cleanup plan; and  
          begin cleanup of the highest priority sites based on the degree  
          of lead contamination and other exposure factors.  To date, the  
          DTSC has overseen the sampling of 714 properties and the cleanup  
          of 208 properties.  The DTSC has also established an Advisory  
          Group of community leaders, local residents, business leaders,  
          scientists, and elected officials to help guide closure and  
          cleanup efforts.                                    


          Payments From a Polluter do not Release the Polluter From  
          Liability for Future Claims.  Existing law provides that an  








                                                                    AB 2748


                                                                    Page  9





          obligation is extinguished by a release given to the debtor by  
          the creditor, either with new consideration (if made by oral  
          agreement), or with or without new consideration (if made in  
          written agreement).  However, a general release does not extend  
          to claims the creditor does not know or suspect to exist at the  
          time of executing the release if those claims would have  
          materially affected his or her settlement with the debtor if  
          they had been known by the creditor.  (Civil Code Section 1542.)  
           Furthermore, California law prohibits, as "against the policy  
          of the law," any "contracts which have for their object,  
          directly or indirectly, to exempt any one from responsibility  
          for his own fraud, or willful injury to the person or property  
          of another, or violation of law, whether willful or negligent."   
          (Civil Code Section 1668.)


          Consistent with Sections 1542 and 1668 of the Civil Code, this  
          bill proposes to prohibit an environmental polluter from  
          requiring recipients of short-term reimbursements (such as  
          payments for expenses such as housing or cleaning) to release a  
          defendant polluter from current and future claims as a condition  
          of accepting such payments.  It provides that a temporary or  
          final settlement of any kind made in connection with the  
          environmental disasters at the Aliso Canyon natural gas well or  
          the Exide Technologies Plant by the responsible polluter or any  
          agent or entity related to the responsible polluter, to any  
          claimant, shall release the responsible polluter, agent and/or  
          entity from liability to the claimant only for acts, omissions  
          or injuries that are believed by the claimant to have occurred  
          prior to the date of the settlement, but shall not release any  
          claim that is unknown to the claimant at the time of the  
          settlement or that occurs subsequent to the settlement, or that  
          is unrelated to the environmental disaster.  It also makes  
          settlements that violate this provision void and unenforceable  
          as a matter of public policy.


          According to the author:









                                                                    AB 2748


                                                                    Page  10






            AB 2748 will ensure that any payment or reimbursement, made in  
            connection with an environmental disaster by the responsible  
            polluter, will not be conditioned upon the release by the  
            recipient of any claim unrelated to the environmental  
            disaster.  


            This will protect victims of environmental disasters when  
            they're at their most vulnerable.  The residents of Porter  
            Ranch have experienced this firsthand, as many have claimed  
            that So Cal Gas has conditioned relocation reimbursements upon  
            the recipient's waiver of all future claims against So Cal  
            Gas.  This is unconscionable.  So Cal Gas's  
            payment/reimbursement of recipients' relocation expenses and  
            other out-of-pocket expenses do not come close to rectifying  
            the true harm inflicted upon these residents.  




          Extended Statute of Limitations for Injuries and Deaths Caused  
          by These two Disasters.  The collective term "statute of  
          limitations" is commonly applied to a great number of acts that  
          prescribe the periods beyond which actions may not be brought.   
          (3 Witkin, Cal. Procedure (5th ed. 2012) Actions, sec. 433, p.  
          432.)  The general purpose is to prevent the assertion of "stale  
          claims."  (Ibid.)  In other words, the statute of limitations  
          "requires diligent prosecution of known claims thereby providing  
          necessary finality and predictability in legal affairs, and  
          ensuring that claims will be resolved while the evidence bearing  
          on the issues is reasonably available and fresh."  (Kaiser  
          Foundation Hospitals v. Workers' Comp. Appeals Bd. (1977) 19  
          Cal.3d 329, 336.)


          Whereas the statute of limitations on a civil action generally  
          begins to run at the time when the injurious act is committed  
          ("after the cause of action shall have accrued" (Section 312)),  








                                                                    AB 2748


                                                                    Page  11





          the statute begins to run, for injuries and deaths caused by  
          environmental hazards, at either the time of the injury, or the  
          date when the plaintiff either becomes aware of, or the date  
          when the plaintiff reasonably should have become aware of an  
          injury that is caused by the toxin, whichever is later.   
          (Section 340.8 (a).)




          SB 331 (Romero, Chap. 873, Stats. of 2013) codified the doctrine  
          of delayed discovery set forth in Section 340.8, overturning a  
          court decision, McKelvey v. Boeing North American, Inc. (1999)  
          74 Cal.App.4th 151, that imputed knowledge of causation of  
          injuries to plaintiffs who claimed to be injured by toxic  
          chemicals because of extensive media coverage of the incident  
          causing the release of chemicals and the toxic nature of the  
          chemicals that were released.  This Committee's analysis  
          included the following explanation for the need to overturn the  
          holding of that case: 


               As proposed to be amended, the bill also provides that  
               media reports regarding the hazardous material or toxic  
               substance contamination do not, in and of themselves,  
               constitute sufficient facts to put a plaintiff on inquiry  
               notice that the plaintiff's injury or decedent's death was  
               caused or contributed to by the wrongful act of another.   
               This provision seeks to limit the recent case . . . in  
               which the court imputed knowledge to the plaintiffs based  
               on extensive media coverage, thereby placing them on  
               inquiry notice sufficient to begin the statute of  
               limitations running.  


               Supporters argue that the doctrine of delayed discovery is  
               critical in hazardous substance exposure cases because in  
               most cases injuries, illnesses, or deaths caused by  
               exposure to hazardous substances are not immediately known.  








                                                                    AB 2748


                                                                    Page  12





                In fact, they argue, exposure to hazardous substances  
               usually leads to chronic conditions that are often not  
               known until long after the exposure began.  The sponsor  
               contends that the three-part test best protects the public  
               in toxic tort litigation because it directly addresses the  
               common scenario of facts gradually accumulating over time  
               until they reach a sufficient level to put the toxic tort  
               plaintiff on inquiry notice that the injury derived from a  
               wrongful act.


          Indeed, SB 331 stated the intent of the Legislature in enacting  
          Section 340.8 was to overturn McKelvey and codify the holding of  
          two other cases (that established the delayed discovery  
          doctrine):


               It is the intent of the Legislature to codify the rulings  
               in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, Norgart  
               v. Upjohn Co. (1999) 21 Cal.4th 383, and Clark v. Baxter  
               HealthCare Corp. (2000) 83 Cal.App.4th 1048, in  
               subdivisions (a) and (b) of Section 340.8 of the Code of  
               Civil Procedure, as set forth in this measure, and to  
                                                                                   disapprove the ruling McKelvey v. Boeing North American,  
               Inc. (1999) 74 Cal.App.4th 151, to the extent the ruling in  
               McKelvey is inconsistent with paragraph (2) of subdivision  
               (c) of Section 340.8 of the Code of Civil Procedure, as set  
               forth in this measure.


          Thus, under the delayed discovery doctrine, the statute of  
          limitations begins to run when "a person becomes aware of facts  
          which would make a reasonably prudent person suspicious" that  
          the defendant caused his or her injuries, in which case "he or  
          she has a duty to investigate further and is charged with  
          knowledge of matters which would have been revealed by such an  
          investigation." (Mangini v. Aerojet-General Corp. (1991) 230  
          Cal. App. 3d 1125, 1150.)  "A patient who actually learns of the  
          dangerous side effects" of a toxin to which she has been exposed  








                                                                    AB 2748


                                                                    Page  13





          "ignores her knowledge at her peril, but the law only requires  
          an investigation when a plaintiff has a reason to investigate."   
          (Nelson v. Indevus Pharmaceuticals, Inc. (2006) 142 Cal.App.4th  
          1202, 1208.)


          While it is known that the residents of Porter Ranch were  
          exposed to toxic chemicals, it is unknown what the effect of  
          such exposure, especially on a long-term basis, on residents  
          will be.  As Professor Avol, of the U.S.C. School of Medicine,  
          points out (above), the "long-term, low-level effects associated  
          with extended exposure" to the toxins released at Aliso Canyon  
          have not previously been followed or even seriously considered.   
          Future injuries could "run the whole gamut from respiratory to  
          cardiovascular to potentially neurological" and may be  
          exacerbated by stress.  However, such difficulty in identifying  
          injuries and their connection to certain toxins is not unique to  
          the incident in Porter Ranch or Exide.  It is typical of the  
          type of injuries caused by exposure - both short and long-term -  
          to toxic chemicals, regardless of how exposure occurs and what  
          the toxic substance happens to be.  At some point in the future,  
          when a resident of Porter Ranch or the area around Exide learns  
          the connection between an injury and the gas leak (or reasonably  
          should make such a connection), the statute of limitations will  
          begin to run for that particular plaintiff.  Under current law,  
          a plaintiff will have two years after discovering the connection  
          between the leak and his or her injury to bring a cause of  
          action against the defendants.  As proposed to be amended, this  
          bill proposes to extend that time period to three years.  Given  
          the difficulty of pursuing civil actions based upon injuries  
          caused by toxic substances, it is therefore reasonable to extend  
          the statute of limitations for the plaintiffs at Porter Ranch  
          and Exide, as proposed by this bill. 


          Likewise, according to DTSC, the Exide facility deposited lead  
          dust across an area of southeast Los Angeles County, resulting  
          in contamination extending 1.7 miles from the facility and  
          impacting up to 10,000 properties, including residences, parks,  








                                                                    AB 2748


                                                                    Page  14





          and schools.  


          As proposed to be amended, the extended statute of limitations  
          in this bill will go into effect on February 1, 2017, applying  
          to these two environmental disasters that are valid on that date  
          and effectively extending the statute of limitations for those  
          claims by one year.  


          Attorneys' Fees.  Unlike the systems of many other countries,  
          the "American" rule in litigation provides that each party is  
          responsible for paying his or her own attorney fees, regardless  
          of who prevails. "Attorneys' fees authorized by contract,  
          statute, or law are an item of allowable costs."  (7 Witkin,  
          Cal. Procedure (5th ed. 2008) Judgment, sec. 150, p. 684.)  Code  
          of Civil Procedure Section 1033.5 (a)(10) provides that, "The  
          following items are allowable as costs . . . (10) Attorney's  
          fees, when authorized by any of the following: (A) Contract; (B)  
          Statute; (C) Law."  Therefore, except as specifically provided  
          for by statute, the measure and mode of compensation of  
          attorneys is generally left to the agreement of the parties.  


          There are certain statutory exceptions that permit the  
          prevailing party to recover reasonable attorney fees incurred  
          during the litigation from the losing party.  For example,  
          reasonable attorneys' fees are recoverable by the prevailing  
          party in a civil action against a public entity where it is  
          shown that the public entity acted in an "arbitrary and  
          capricious manner;" (Government Code Section 800 (a)), to the  
          prevailing party in an action brought under the Fair Employment  
          and Housing Act (Government Code Section 12965 (b)); or to the  
          prevailing party in an action for a violation of the Unruh Civil  
          Rights Act (Civil Code Sections 51.5, 51.6, 52 (a)).  Most  
          similar to this bill, current law authorizes attorneys' fees to  
          be awarded in an action for property damage arising from a  
          trespass on land under cultivation or used for raising  
          livestock.  (CCP Section 1021.9.)








                                                                    AB 2748


                                                                    Page  15







          This bill would authorize the court, in any action for private  
          nuisance against an environmental polluter defendant arising out  
          of the two environmental disasters - Aliso Canyon and Exide -  
          for which the defendant has been adjudged civilly liable, upon  
          motion, to award reasonable attorneys' fees to a prevailing  
          plaintiff against the defendant.  Given the similarity between a  
          claim for property damaged arising from trespass on land under  
          cultivation (CCP Section 1021.9) and the private nuisance of  
          toxic chemical pollution on property envisioned by this bill,  
          allowing the collection of reasonable attorneys' fees in both  
          situations seems reasonable.  


          ARGUMENTS IN SUPPORT:  The Consumer Attorneys of California  
          write the following in support of AB 2748:


               The devastating Exide battery plant lead contamination  
               disaster in Boyle Heights and the natural gas leak at South  
               California Gas Company's Aliso Canyon storage field have  
               resulted in massive community and environmental impacts in  
               the last year alone. These disasters have also shed light  
               on the lack of key environmental and consumer protections  
               to help victims of these disasters who are now dealing with  
               the consequences of these environmental disasters.  AB 2748  
               would address this by establishing key consumers  
               protections for not only these devastated communities, but  
               for any future large scale environmental catastrophe that  
               we encounter in the future.  


               People who live near any environmental disasters may be  
               aware of the disaster but unaware of the adverse heath  
               affects for years.  Moreover, environmental pollution is  
               often not known until years later.  For example, residents  
               in the Porter Ranch area or people who live close to the  
               Exide battery plant may be aware of their illness and not  








                                                                    AB 2748


                                                                    Page  16





               make the link between their illness and the disaster until  
               years later.  AB 2748 would extend the current statute of  
               limitations to three years.  The goal of extending the  
               statute of limitations is to give victims additional time  
               to take legal action as they become increasingly aware of  
               the cause of their adverse health effects.  In some case,  
               proper diagnosis has also proven to be a challenge where  
               victims may report a non-specific illness to their doctors  
               but are unaware of the link.  For example, in the early  
               stages of the Porter Ranch disaster, victims would see  
               their doctors and were sent them home with instructions of  
               not to worry about their headaches, nosebleeds, nausea, and  
               labored breathing.  In less well publicized cases with  
               exposure to other hazardous substances, the victims may not  
               know for some time about a causal link.  Giving these  
               people more time to bring a claim for their harms keeps the  
               courtroom doors open and the wrongdoers accountable.


          SIMILAR RECENT OR PENDING LEGISLATION.  AB 118 (Santiago)  
          provides additional funding from the Toxic Substances Control  
          Account to test the remaining properties, schools, daycare  
          centers, and parks in the 1.7 mile radius and remove  
          contaminated soil at the properties that have the highest lead  
          levels and greatest potential exposure to residents; provides  
          resources to expand community engagement in the testing and  
          cleanup process, enhance coordination and job training for  
          community residents, and promote the use of local business and  
          labor for contracting purposes; and appropriates $176.6 million  
          from the Toxic Substances Control Account to be supported by a  
          loan from the General Fund.  AB 118 was recently signed into  
          law.  (Chapter 10, Statutes of 2016.)


          AB 1902 (Wilk) extends the period of time for a plaintiff to  
          file a civil action for injuries, illness or death caused by  
          exposure to toxic hazards, but only if the plaintiff is exposed  
          to certain toxic hazards between January 1, 2015 and December  
          31, 2016 while living within a 12-mile radius of the Aliso  








                                                                    AB 2748


                                                                    Page  17





          Canyon gas leak.  AB 1906 died in this Committee on April 5,  
          2016.


          AB 1903 (Wilk) directs the Public Utilities Commission and the  
          State Department of Public Health to jointly study the long-term  
          health impacts of the Aliso Canyon natural gas leak.  AB 1903  
          was recently approved by the Assembly and is pending referral to  
          a policy committee in the Senate.


          AB 1904 (Wilk) directs the Office of Environmental Health Hazard  
          Assessment to submit a report to the legislature that assesses  
          the danger to public health and safety and the environment of  
          odorants currently used in natural gas storage facilities and  
          identify potential alternative odorants, effective immediately  
          (as an urgency measure).  AB 1904 is pending on the Assembly  
          Floor.


          AB 1905 (Wilk) directs the Natural Resources Agency to conduct  
          an independent scientific study on natural gas injection and  
          storage practices and facilities immediately (as an urgency  
          measure).  AB 1905 was held in the Assembly Appropriations  
          Committee.


          SB 380 (Pavley) places a moratorium on natural gas injections at  
          the Aliso Canyon gas storage facility and establishes  
          requirements to resume injections, including each well at the  
          facility has been evaluated and those posing risk of failure  
          have been repaired or plugged, to take effect immediately (as an  
          urgency measure).  SB 380 was recently signed into law.   
          (Chapter 14, Statutes of 2016.) 


          SB 886 (Pavley) requires the Division of Oil, Gas, and  
          Geothermal Resources (DOGGR) to immediately place a moratorium  
          on natural gas injections at the Aliso Canyon gas storage  








                                                                    AB 2748


                                                                    Page  18





          facility and prevent use of wells drilled pre-1954 and requires  
          the PUC to determine the feasibility of eliminating (or  
          minimizing) the use of the Aliso Canyon gas storage facility, to  
          take effect immediately (as an urgency measure).  SB 886 was  
          recently approved by the Senate and is pending referral to a  
          policy committee in the Assembly.


          SB 887 (Pavley) requires DOGGR to prescribe standards for  
          natural gas storage wells and inspect all natural gas storage  
          wells annually and prescribes other requirements.  SB 887 is  
          pending in the Senate Natural Resources Committee.  SB 887 was  
          recently approved by the Senate and is pending referral to a  
          policy committee in the Assembly.


          REGISTERED SUPPORT / OPPOSITION:





          SUPPORT


          


          California Coastal Protection Network


          California Labor Federation


          California League of Conservation Voters


          Clean Water Action









                                                                    AB 2748


                                                                    Page  19






          Coalition for Clean Air


          Consumer Attorneys of California


          Courage Campaign


          Environmental Justice Coalition for Water


          Environmental Working Group


          Food and Water Watch


          Natural Resources Defense Council


          Sierra Club California


          State Building and Construction Trades Council


          Trust for Public Land


          Wholly H20


           


           OPPOSITION









                                                                    AB 2748


                                                                    Page  20






          


          American Chemistry Council


          California Chamber of Commerce


          California Independent Petroleum Association


          California Manufacturers and Technology Association


          California Metals Coalition


          California Railroad Industry


          Chemical Industry Council of California


          Civil Justice Association of California


          National Federation of Independent Business


          Western Plant Health Association


          Western Plastics Association


          Western States Petroleum Association









                                                                    AB 2748


                                                                    Page  21








          Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334