BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 2748|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 


          Bill No:  AB 2748
          Author:   Gatto (D) 
          Amended:  6/2/16 in Assembly
          Vote:     21 

           SENATE JUDICIARY COMMITTEE:  4-2, 6/21/16
           AYES:  Jackson, Hertzberg, Leno, Monning
           NOES:  Moorlach, Anderson
           NO VOTE RECORDED:  Wieckowski

           SENATE ENVIRONMENTAL QUALITY COMMITTEE:  5-2, 6/29/16
           AYES:  Wieckowski, Hill, Jackson, Leno, Pavley
           NOES:  Gaines, Bates

           ASSEMBLY FLOOR:  53-18, 6/2/16 - See last page for vote

           SUBJECT:   Environmental disaster:  release of claims:  statute  
                     of limitations:  attorneys fees


          SOURCE:    Author
          
          DIGEST:  This bill enacts the following with regard to claims  
          relating to environmental disasters in the Porter Ranch area or  
          surrounding the Exide Technologies facility in the City of  
          Vernon: (1) partial or interim payments or reimbursements, as  
          defined, would not release any responsible polluter or agent  
          from liability for a claim, and may not be made on condition of  
          securing a release of liability, but may be credited against  
          such liability; (2) temporary or final settlements made in  
          connection with a claim would not release liability for any  
          claim unknown at the time of settlement, or that occurs after  
          settlement, or that is unrelated to the environmental disaster;  








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          (3) establishes a three year statute of limitation for civil  
          actions for injury or illness based upon exposure to a hazardous  
          material or toxic substance, as specified; and (4) authorizes  
          the court to award attorney fees to a prevailing plaintiff in  
          any action for private nuisance against an environmental  
          polluter, as specified.


          ANALYSIS:  


          Existing law:

          1)Declares anything which is injurious to health, including, but  
            not limited to, the illegal sale of controlled substances, or  
            is indecent or offensive to the senses, or an obstruction to  
            the free use of property, so as to interfere with the  
            comfortable enjoyment of life or property, or unlawfully  
            obstructs the free passage or use, in the customary manner, of  
            any navigable lake, or river, bay, stream, canal, or basin, or  
            any public park, square, street, or highway, to be a nuisance.  
             (Civ. Code Sec. 3479)

          2)Requires an action for assault, battery, or injury to, or for  
            the death of, an individual caused by the wrongful act or  
            neglect of another to be brought within two years.  (Code Civ.  
            Proc. Sec. 335.1.)  Requires an action for trespass upon or  
            injury to real property to be brought within three years.   
            (Code Civ. Proc. Sec. 338.)

          3)States in any civil action for injury or illness based upon  
            exposure to a hazardous material or toxic substance, the time  
            for commencement of the action shall be no later than either  
            two years from the date of injury, or two years after the  
            plaintiff becomes aware of, or reasonably should have become  
            aware of, (1) an injury, (2) the physical cause of the injury,  
            and (3) sufficient facts to put a reasonable person on inquiry  
            notice that the injury was caused or contributed to by the  
            wrongful act of another, whichever occurs later.  (Code Civ.  
            Proc. Sec. 340.8(a).)

          4)States in an action for the wrongful death of any plaintiff's  
            decedent, based upon exposure to a hazardous material or toxic  
            substance, the time for commencement of an action shall be no  







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            later than either (1) two years from the date of the death of  
            the plaintiff's decedent, or (2) two years from the first date  
            on which the plaintiff is aware of, or reasonably should have  
            become aware of, the physical cause of the death and  
            sufficient facts to put a reasonable person on inquiry notice  
            that the death was caused or contributed to by the wrongful  
            act of another, whichever occurs later.  (Code Civ. Proc. Sec.  
            340.8(b).)


          This bill:


          1)Extends to three years the statute of limitation for an action  
            for injury or illness based upon exposure to a hazardous  
            material or toxic substance relating to the Porter Ranch area  
            or contamination surrounding the Exide Technologies facility  
            in the City of Vernon, as specified.


          2)Extends to three years the statute of limitation for an action  
            for the wrongful death of any plaintiff's decedent based upon  
            exposure to a hazardous material or toxic substance relating  
            to the Porter Ranch area or contamination surrounding the  
            Exide Technologies facility in the City of Vernon, as  
            specified.


          3)Specifies, for purposes of the above two provisions, that  
            media reports regarding the hazardous material or toxic  
            substance contamination do not, in and of themselves,  
            constitute sufficient facts to put a reasonable person on  
            inquiry notice that the injury or death was caused or  
            contributed to by the wrongful act of another.


          4)States that in any action for private nuisance against an  
            environmental polluter defendant arising out of an  
            environmental disaster relating to the Porter Ranch area or  
            contamination surrounding the Exide Technologies facility in  
            the City of Vernon, as specified, 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.







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          5)States that a partial or interim payment or reimbursement of  
            any kind made in connection with an environmental disaster  
            relating to the Porter Ranch area or contamination surrounding  
            the Exide Technologies facility in the City of Vernon, as  
            specified, by the responsible polluter or any agent or entity  
            related to the responsible polluter to any recipient:

                 shall not release the polluter from liability to the  
               recipient for any claim related to the environmental  
               disaster or for any future claim by the recipient against  
               the polluter, or for both current and future claims;
                 shall not be conditioned upon the recipient's agreement  
               to release the polluter from liability for any current or  
               future claim; and
                 may be credited against the liability of the polluter,  
               agent, or entity to the recipient for any current or future  
               claim that is related to the environmental disaster.

          1)States that a temporary or final settlement of any kind made  
            in connection with an environmental disaster relating to the  
            Porter Ranch area or contamination surrounding the Exide  
            Technologies facility in the City of Vernon, as specified, by  
            the responsible polluter or any agent or entity related to the  
            responsible polluter, to any claimant, shall release the  
            responsible polluter, agent, 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, occurs  
            subsequent to the settlement, or that is unrelated to the  
            environmental disaster.


          Background
          
          Two sites of significant environmental contamination have  
          featured repeatedly in the media this year: the release of  
          natural gas from an underground storage facility in Porter  
          Ranch, and the environmental impacts related to decades-long  
          operation of a battery recycling facility in Vernon.  The leak  
          at Porter Ranch, first detected on October 23, 2015, came from  
          one of 115 wells connected to the fifth largest underground  







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          natural gas storage facility in the United States.  Southern  
          California Gas Company, who owns the facility, made several  
          attempts to stop the leak, but was unsuccessful in its efforts  
          until February 18, 2016, by which time almost 100,000 tonnes of  
          methane had escaped into the atmosphere.  Concerns over the  
          health impacts from the release led to the evacuation of 11,000  
          residents and a declaration of a state of emergency by Governor  
          Brown.  According to the BBC, "[a]t its peak, the flow doubled  
          the rate of methane emissions from the entire Los Angeles  
          basin," and the "impact on the climate is said to be the  
          equivalent of the annual emissions of half a million cars."  The  
          scale of the leak makes it the largest in U.S. history, and,  
          according to researchers, "had a far bigger warming effect than  
          the BP oil spill in the Gulf of Mexico in 2010."  (Matt McGrath,  
          California Methane Leak Largest in US History, British  
          Broadcasting Company (Feb. 26, 2016)  
           
                                                                    Page  6


          Huntington Park."  (Id.)

          More recently, "[as] demands to close the plant mounted from  
          community groups and elected officials, the company revealed in  
          2014 it was under federal criminal investigation," and in March  
          of 2015, "the company signed an agreement with the U.S.  
          attorney's office to close [the site] permanently."  Under the  
          terms of that agreement, "Exide and its employees [will] avoid  
          prosecution for years of environmental crimes, including illegal  
          storage, disposal and shipment of hazardous waste, while  
          agreeing to pay $50 million to demolish and clean the plant and  
          surrounding communities, including $9 million set aside for  
          removing lead from homes."  (Tony Barboza, How a Battery  
          Recycler Contaminated L.A. Area Homes for Decades, Los Angeles  
          Times (December 21, 2015)  
           
                                                                    Page  7


            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.  Researchers at USC intend to study  
            the long-term health effects of the gas leak on area  
            residents, but 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.  Other types of environmental disasters  
            likely bear similar threat to communities and therefore  
            deserve the same relief.

            AB 2748 endeavors to provide victims of environmental  
            disasters better access to remedies available to them through  
            our judicial system.  This legislation has taken the lessons  
            learned as a result of these most recent environmental crises  
            in the state, to provide legal relief to not only those who  
            have already suffered, but also future victims of serious,  
            catastrophic pollution. . . . The bill offers three provisions  
            to provide key protections to those who suffered from the  
            environmental catastrophes in the Porter Ranch area and  
            surrounding the Exide Technologies facility in the City of  
            Vernon:

                 first, the proposed legislation will ensure that any  
               temporary or final settlement made in connection with an  
               environmental disaster shall not release any claim that is  
               unknown to the claimant at the time of the settlement,  
               occurs subsequent to the settlement, or that is unrelated  
               to the environmental disaster;
                 second, the bill will extend the current statute of  
               limitations for civil actions for injury or illness or  
               wrongful death based upon exposure to a hazardous material  
               or toxic substance to three years; and
                 third, it will authorize the court to award reasonable  
               attorneys' fees to a prevailing plaintiff against the  
               defendant for residents who bring private actions.


          Related/Prior Legislation
          
          SB 887 (Pavley, 2016) provides a framework for reforming  
          oversight of natural gas storage facilities by, among other  







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          things, mandating minimum standards for gas storage well  
          inspections, monitoring, and testing; training of personnel;  
          leak monitoring, planning for emergency response; developing and  
          incorporating best practices into regulations; and an assessment  
          of risk to determine setback distances for gas storage wells.   
          This bill is pending in the Assembly Committee on  
          Appropriations.

          SB 1304 (Huff, 2016) authorizes the board of supervisors of a  
          county to provide for reassessment of property destroyed or  
          damaged by a major misfortune or calamity in an area or region  
          subsequently proclaimed by the Governor to be in a state of  
          emergency, and specifies that "damage" includes a diminution in  
          the value of property as a result of environmental  
          contamination.  This bill is pending on the Assembly Floor.

          AB 1902 (Wilk, 2016) establishes a 3 year statute of limitations  
          for commencing a civil action for injury, illness, or wrongful  
          death based on exposure to methane, benzene, mercaptan, or any  
          other hazardous material or toxic substance resulting from the  
          Southern California Gas Company Aliso Canyon SS-25 gas leak, as  
          specified.  This bill is pending in the Assembly Judiciary  
          Committee.

          AB 1903 (Wilk, 2016) requires the Public Utilities Commission to  
          authorize a study by the Office of Environmental Health Hazard  
          Assessment of the long-term health impacts of the significant  
          natural gas leak from the Aliso Canyon natural gas storage  
          facility located in the County of Los Angeles that started on  
          approximately October 23, 2015, as specified.  This bill is  
          pending in the Senate Committee on Appropriations.

          AB 1904 (Wilk, 2016) requires the Office of Environmental Health  
          Hazard Assessment to submit a report to the Legislature, on or  
          before January 1, 2019, that includes an assessment of the  
          potential danger of odorants currently used in natural gas  
          storage facilities in the state to public health and safety and  
          the environment, and that identifies alternative odorants for  
          possible use in natural gas storage facilities, as specified.   
          This bill is pending in the Senate Committee on Environmental  
          Quality.

          AB 1905 (Wilk, 2016) requires the Secretary of the Natural  
          Resources Agency, on or before July 1, 2017, to commission an  







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          independent scientific study on natural gas injection and  
          storage practices and facilities.  This bill was held under  
          submission by the Assembly Committee on Appropriations.

          AB 2153 (Garcia, 2016), among other things, requires a  
          manufacturer of lead-acid batteries to remit to the State Board  
          of Equalization a manufacturer battery fee of $1 for each  
          lead-acid battery it sells for deposit into the Lead-Acid  
          Battery Cleanup Fund, as specified, and would provide for  
          certain credits against liability for a person who remits  
          manufacturer battery fees if that person is held responsible by  
          any court, regional board, agency, or any other authority for  
          certain hazardous substance violations.  This bill is pending in  
          the Senate Committee on Environmental Quality.

          SB 380 (Pavley, Chapter 14, Statutes of 2016), among other  
          things, continued a moratorium on injection of natural gas at  
          the Aliso Canyon gas storage facility until specified criteria  
          are met, requires the feasibility of the storage facility to be  
          addressed and requires the California Public Utilities  
          Commission, with input from others, to determine the amount of  
          gas necessary at the facility for safety, regional reliability  
          and to ensure just and reasonable rates.


          AB 118 (Santiago, Chapter 10, Statutes of 2016) appropriated  
          $176,600,000 from the Toxic Substances Control Account in the  
          General Fund to the Department of Toxic Substances Control for  
          activities related to the cleanup and investigation of  
          lead-contaminated properties in the communities surrounding the  
          Exide Technologies facility in the City of Vernon, including job  
          training activities, and actions taken to pursue all available  
          remedies against potentially responsible parties.

          SB 93 (De Leon, Chapter 9, Statutes of 2015) required the  
          Director of Finance to transfer up to $176,600,000 as a loan  
          from the General Fund to the Toxic Substances Control Account  
          for the Department of Toxic Substances Control to use for  
          activities related to the lead contamination in the communities  
          surrounding the Exide Technologies facility in the City of  
          Vernon.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  







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          Com.:NoLocal:    No


          SUPPORT:   (Verified8/2/16)


          California Coastal Protection Network
          California Labor Federation
          California League of Conservation Voters
          Clean Water Action
          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:   (Verified8/2/16)


          American Chemistry Council
          American Insurance Association
          California Chamber of Commerce
          California Independent Petroleum Association
          California League of Food Processors
          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

          ASSEMBLY FLOOR:  53-18, 6/2/16
          AYES:  Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta,  
            Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley,  







                                                                    AB 2748  
                                                                    Page  11


            Cooper, Dababneh, Daly, Dodd, Eggman, Cristina Garcia, Eduardo  
            Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley,  
            Roger Hernández, Irwin, Jones-Sawyer, Lackey, Levine, Lopez,  
            Low, McCarty, Medina, Mullin, O'Donnell, Quirk, Ridley-Thomas,  
            Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber,  
            Wilk, Williams, Wood, Rendon
          NOES:  Achadjian, Travis Allen, Brough, Chávez, Dahle,  
            Gallagher, Harper, Jones, Maienschein, Mathis, Mayes,  
            Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner,  
            Waldron
          NO VOTE RECORDED:  Bigelow, Chang, Frazier, Beth Gaines, Grove,  
            Holden, Kim, Linder, Nazarian

          Prepared by:Tobias Halvarson / JUD. / (916) 651-4113
                                                                     8/4/16 9:30:06


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