BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2748


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          2748 (Gatto)


          As Amended  August 19, 2016


          Majority vote


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          |ASSEMBLY:  |53-18 |(June 2, 2016) |SENATE: |23-13 |(August 23,      |
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          Original Committee Reference:  JUD.




          SUMMARY:  Proposes several remedies that will assist persons who  
          are affected by exposure to a hazardous material or toxic  
          substance in connection with either the environmental disaster  
          that occurred at Southern California Gas Company's Aliso Canyon  
          gas storage facility, or the contamination surrounding the Exide  
          Technologies facility in the City of Vernon.  Specifically, this  
          bill:  


          1)Provides that a payment or reimbursement made in connection  
            with an environmental disaster by the responsible polluter or  
            any agent or entity related to the responsible polluter to any  
            shall not be conditioned upon the release by the recipient of  
            any current or future claim related to the environmental  
            disaster or all future claims unrelated to the disaster, or  
            both.








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          2)Provides that a condition described in 1) above, in a  
            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 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 an  
            environmental disaster 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)Exempts any action against a public entity from all of the  
            above provisions.


          6)Makes the provisions of 1) through 4) above, applicable only  
            to those persons affected by exposure to a hazardous material  
            or toxic substance in connection with either the environmental  
            disaster that occurred at Southern California Gas Company's  
            Aliso Canyon gas storage facility, or contamination  
            surrounding the Exide Technologies facility in the City of  
            Vernon.


          The Senate amendments:










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          1)Exempt any action against a public entity from all of the  
            provisions of the bill.


          2)Make all sections of the bill applicable only to those persons  
            who are affected by exposure to a hazardous material or toxic  
            substance in connection with either the environmental disaster  
            that occurred at Southern California Gas Company's Aliso  
            Canyon gas storage facility, or contamination surrounding the  
            Exide Technologies facility in the City of Vernon.


          FISCAL EFFECT:  None


          COMMENTS:  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.  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 (U.S.) 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 University of Southern  
          California (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:










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          A 2013 report released by the South Coast Air Quality Management  
          District found that Exide's arsenic emissions endangered the  
          health of 110,000 people who live near the plant.  Over decades  
          of operation, the facility polluted the soil beneath it with  
          high levels of lead, arsenic, cadmium and other toxic metals,  
          according to state environmental records.  It has also  
          contaminated groundwater, released battery acid into the soil  
          and contaminated homes and yards in surrounding communities with  
          lead emissions.




          Payments From a Polluter do not Release the Polluter From  
          Liability for Future Claims.  Existing law provides that an  
          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 Civil Code Sections 1542 and 1668, 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 payments or  
          reimbursements made in connection with an environmental disaster  
          by the responsible polluter and any of its related agents or  
          entities to any recipients shall not be conditioned upon the  
          recipient's release of any claims unrelated to the environmental  
          disaster and all future claims and makes such settlements void  








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          and unenforceable as a matter of public policy.




          Extended Statute of Limitations for Injuries and Deaths Caused  
          by Toxic Chemicals.  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.)


          This bill proposes to extend that time period from two years to  
          three years for persons who have been affected by exposure to a  
          hazardous material or toxic substance in connection with either  
          the environmental disaster that occurred at Southern California  
          Gas Company's Aliso Canyon gas storage facility, or  
          contamination surrounding the Exide Technologies facility in the  
          City of Vernon.  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 all  
          plaintiffs who are injured or killed by toxic chemicals for  
          persons affected by the pollution at these two sites, as  
          provided by this bill. 


          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.)  










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          This bill would authorize the court, in any action for private  
          nuisance against an environmental polluter defendant arising out  
          of an environmental disaster for which the defendant has been  
          adjudged civilly liable, upon motion, to award reasonable  
          attorneys' fees to a prevailing plaintiff against the defendant.  
           This provision would apply to persons affected by exposure to a  
          hazardous material or toxic substance in connection with either  
          the environmental disaster that occurred at Southern California  
          Gas Company's Aliso Canyon gas storage facility, or  
          contamination surrounding the Exide Technologies facility in the  
          City of Vernon.  Given the similarity between a claim for  
          property damaged arising from trespass on land under cultivation  
          (Code of Civil Procedure 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.  


          Analysis Prepared by:                                             
                          Alison Merrilees / JUD. / (916) 319-2334  FN:  
          0004792