BILL NUMBER: SB 1340 CHAPTERED
BILL TEXT
CHAPTER 987
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 1998
APPROVED BY GOVERNOR SEPTEMBER 29, 1998
PASSED THE SENATE AUGUST 31, 1998
PASSED THE ASSEMBLY AUGUST 24, 1998
AMENDED IN ASSEMBLY AUGUST 20, 1998
AMENDED IN ASSEMBLY JULY 30, 1998
AMENDED IN ASSEMBLY JULY 6, 1998
AMENDED IN ASSEMBLY JUNE 25, 1998
AMENDED IN ASSEMBLY JUNE 17, 1998
AMENDED IN SENATE JANUARY 28, 1998
INTRODUCED BY Senator Polanco
(Coauthors: Assembly Members Keeley, Olberg, Oller, Wayne, and
Woods)
FEBRUARY 28, 1997
An act to add Section 40059.1 to the Public Resources Code,
relating to solid waste.
LEGISLATIVE COUNSEL'S DIGEST
SB 1340, Polanco. Solid waste enterprise: indemnity obligation.
The existing California Integrated Waste Management Act of 1989,
which is administered by the California Integrated Waste Management
Board, establishes an integrated waste management program.
Under the act, each county, city, or district may determine
aspects of solid waste handling that are of local concern and the
means by which the services are to be provided. A solid waste
enterprise is a person regularly engaged in the business of providing
solid waste handling services.
The act requires the diversion of solid waste from disposal, as
prescribed.
This bill would impose specified restrictions on the
enforceability of an indemnity obligation contained in any provision,
term, condition, or requirement in an ordinance, contract,
franchise, license, permit, or other entitlement or right adopted,
entered into, issued, or granted, as the case may be, by a local
agency for solid waste collection and handling, including the
recycling, processing, or composting of solid waste, or in any
request for bids or proposals in connection with any such contract or
franchise.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 40059.1 is added to the Public Resources Code,
to read:
40059.1. (a) The Legislature hereby finds and declares both of
the following:
(1) In 1989, the Legislature enacted this division as the
California Integrated Waste Management Act of 1989. One of the key
provisions of this division is that each local agency has the
responsibility for diverting 50 percent of all solid waste generated
within the local agency by January 1, 2000.
(2) The public policy objective of the Legislature in enacting
this section is to ensure that those local agencies that require an
indemnity obligation retain their responsibility for implementing the
diversion requirements of this division.
(b) For the purposes of this section, the following terms have the
following meanings:
(1) "Indemnity obligation" means any indemnity obligation directly
or indirectly related to the failure of a local agency to meet the
solid waste diversion requirements imposed by Chapter 6 (commencing
with Section 41780) of Part 2, that is expressly assumed by, or
imposed upon, the solid waste enterprise, whether pursuant to
ordinance, contract, franchise, license, permit, or other entitlement
or right, for the benefit of the local agency.
(2) "Local agency" means any county, city, city and county,
district, regional agency as defined in Section 40181, or other local
government agency.
(c) Any provision, term, condition, or requirement contained in
any ordinance, contract, franchise, license, permit, or other
entitlement or right adopted, entered into, issued, or granted, as
the case may be, by a local agency for solid waste collection and
handling, including the recycling, processing, or composting of solid
waste, or in any request for bids or proposals in connection with
any such contract or franchise, that authorizes or requires the
imposition of an indemnity obligation, shall, notwithstanding any
such provision, term, condition, or requirement, be subject to all of
the following restrictions:
(1) An indemnity obligation shall not be enforceable if the board
imposed penalty is based solely upon the failure of the local agency
to establish and maintain a source reduction and recycling element
pursuant to Chapter 2 (commencing with Section 41000) of Part 2,
Chapter 3 (commencing with Section 41300) of Part 2, or Section
41750.1, as the case may be.
(2) Any board imposed penalty based upon a local agency's failure
to meet the solid waste diversion requirements imposed by Chapter 6
(commencing with Section 41780) of Part 2, resulting in whole or in
part from the solid waste enterprise's breach of contract or
noncompliance with any other authorization, shall be apportioned in
accordance with the percentage of fault of the local agency and the
solid waste enterprise.
(3) For purposes of this section, a solid waste enterprise is not
liable for the indemnity obligation to the extent that the solid
waste enterprise's breach or noncompliance resulted from the action
or failure to act of the local agency.
(4) No payment required or imposed pursuant to an indemnity
obligation, whether required or imposed by ordinance, contract,
franchise, license, permit, or other entitlement or right, may exceed
that portion of any penalty assessed by the board against the local
agency that was caused by the solid waste enterprise's breach or
noncompliance of an express obligation or requirement.
(5) No indemnity obligation shall be enforceable against a solid
waste enterprise until the local agency has affirmatively sought, in
good faith, all administrative relief available pursuant to Chapter 6
(commencing with Section 41780) and Chapter 7 (commencing with
Section 41800) of Part 2, unless the local agency demonstrates good
cause, based on substantial evidence in the record, for not pursuing
that administrative relief. The solid waste enterprise shall
cooperate, in good faith, with the local agency seeking that
administrative relief and shall provide in writing to the local
agency all known defenses to the imposition of penalties.
(d) Nothing in this section shall be construed to preclude either
party from seeking any other remedy under law or equity.
(e) The provisions of this section are not subject to waiver, and
any attempted waiver shall be null and void as against public policy.
(f) This section is not intended to do any of the following:
(1) Add to or expand the authority of local agencies to determine
aspects of solid waste collection and handling pursuant to Section
40059.
(2) Alter the authority of business entities to collect or process
materials that are not solid waste.
(3) Affect any contract right existing on the effective date of
this section.