BILL ANALYSIS Ó
AB 2748
Page 1
GOVERNOR'S VETO
AB
2748 (Gatto)
As Enrolled September 9, 2016
2/3 vote
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|ASSEMBLY: |53-18 |(June 2, 2016) |SENATE: |23-13 |(August 23, |
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|ASSEMBLY: |54-23 |(August 30, | | | |
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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
AB 2748
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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.
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
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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:
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.
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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:
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
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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
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.)
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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.
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.)
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.
GOVERNOR'S VETO MESSAGE:
"This bill would prohibit the use of release clauses and limit
the scope of waivers in settlements pertaining to the Exide
Technologies facility and Southern California Gas Company's
Aliso Canyon gas storage facility.
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"This bill could eliminate the incentive for defendants to
settle legal disputes stemming from these two unrelated
incidents, something that clearly is not in the public interest.
Nothing has been shown to indicate that current law is
insufficient to hold polluters accountable. I would point to
the many direct enforcement actions and lawsuits that have been
filed on behalf of the state and affected communities."
Analysis Prepared by:
Alison Merrilees / JUD. / (916) 319-2334 FN:
0005085