BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2748|
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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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Page 2
(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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Page 3
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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Page 4
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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Page 8
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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Page 9
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,
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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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