BILL ANALYSIS �
AB 2442
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 2442 (Gordon) - As Introduced: February 21, 2014
SUBJECT : Porter-Cologne Water Quality Control Act: remedial
action: liability.
SUMMARY : Provides the State Water Resources Control Board
(State Water Board) and Regional Water Quality Control Boards
(Regional Water Boards) with explicit protection from civil and
criminal liability. Specifically, this bill :
1)Provides the State Water Board and Regional Water Boards with
explicit protection from civil and criminal liability related
to investigating and cleaning up water pollution.
2)Provides that the protection from liability for the State and
Regional Water Boards would apply to any authorized person in
connection with any investigation, cleanup, abatement, or
other remedial work.
3)Excludes from liability protection actions that were performed
in a grossly negligent manner.
4)Provides that the limitation on State and Regional Water
Boards liability apply to a cause of action in a civil
complaint filed after January 1, 2015.
EXISTING LAW :
1)Allows the State and Regional Water Boards to investigate
actual or suspected waste discharges that threaten water
quality. Provides that if no viable responsible party or
discharger is identified for a polluted site, the State or
Regional Water Boards may contract for the cleanup.
2)Authorizes the State and Regional Water Boards to require a
person who has discharged waste so as to cause or threaten to
cause pollution or nuisance to clean up the waste and abate
the effects of the discharge.
3)Provides limited liability immunity for the Department Toxic
Substance Control Department to enter upon any lands for the
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purpose of taking removal or remedial action.
4)Provides limited liability immunity for a public agency and
its employees or agents for injury or property damage caused
by actions taken by a public safety employee while responding
to a hazardous substance release believed to be an imminent
peril to public health or safety.
5)Provides that a public entity is not liable for an injury,
whether such injury arises out of an act or omission of the
public entity, or a public employee, or any other person.
Provides that the liability of a public entity, as specified,
is subject to any immunity of the public entity provided by
statute and is subject to any defenses that would be available
to the public entity if it were a private person.
FISCAL EFFECT : Non-Fiscal.
COMMENTS :
Need for the bill : According to the State Water Board, the
sponsor of this legislation, "Currently, the Water Boards often
are reluctant to fully exercise their authority to investigate
and/or clean up water pollution problems that may threaten
public health and the environment due to liability concerns.
"Under current law, the Water Boards can perform, or contract
for, the investigation, cleanup, abatement, or remedial work
that is required to address waste discharges that have polluted,
or threaten to pollute, waters of the State? However, the Water
Boards often are reluctant to exert their authority to
investigate and/or clean up water pollution problems that may
threaten public health or the environment due to liability
concerns including: 1) potential liability claims that the
Water Boards' actions at a site makes them a responsible party
and that their limited actions at a site do not fully protect
all affected persons, 2) claims for reimbursement of incidental
property damage, or 3) potential trespass actions that may arise
due to the Water Boards' investigations or cleanups. Thus, even
when the Water Boards are faced with a severe pollution problem
and there is no apparent financially viable responsible party,
the Water Boards are likely to decline to act due to liability
concerns."
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Liability of clean-up actions : This legislative proposal would
provide the State and Regional Water Boards with explicit
protection from civil and/or criminal liability related to
investigating and cleaning up water pollution. This would
remove a barrier in current law that deters the "Water Boards
from taking actions to investigate, prevent, or clean up
pollution. The proposal would clarify that the liability
protection applies to actions by the" Water Boards to
investigate and clean up any discharges that threaten water
quality. Although civil liability is the primary concern, the
proposed language also provides relief from criminal liability
(such as trespassing).
Government immunity in California : According to the Senate
Judiciary Committee, California law generally provides public
entities with broad tort immunity that insulates them from civil
liability. The California Tort Claims Act (Gov. Code 810 et
seq.) states that "a public entity is not liable for an injury,
whether such injury arises out of an act or omission of the
public entity, or a public employee, or any other person" unless
otherwise provided by statute. Thus, in order to hold a public
entity liable for any tort, a plaintiff would first have to
identify a specific relevant statute that waived its sovereign
immunity and exposed it to liability. Absent a specific statute
that expressly waives sovereign immunity, California's public
entities cannot be held liable in tort.
Penn Mine Case : The liability for the State and Regional Water
Boards for their actions in cleaning up toxic waste sites was
highlighted in the efforts to control runoff from the Penn Mine.
The Penn Mine is an abandoned copper and zinc mine adjacent to
the Mokelumne River that operated intermittently from the 1860s
through the 1950s. In the 1960s, the East Bay Municipal Utility
District (EBMUD) acquired part of the Penn Mine property to
build the Comanche Reservoir. In 1978, EBMUD and the Central
Valley Water Board constructed a remediation project in an
attempt to reduce the impacts caused by acid mine drainage from
the abandoned mine. The Central Valley Water Board and EBMUD
were subsequently found jointly responsible under the Clean
Water Act for the acid mine drainage due to their operation of
the remediation project. (Committee To Save Mokelumne River v.
East Bay Mun. Utility Dist. (9th Cir. 1993) 13 F.3d 305.)
In the appeal of the court order on the Penn Mine case, the
court pointed out that unlike the federal Comprehensive
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Environmental Response, Compensation and Liability Act, which
provides a statutory liability exemption, the federal Clean
Water Act contains no such exemption. Given the absence of any
statutory authority to exempt the Board or District from
liability under the Clean Water Act, the district court was
correct in establishing state liability of their cleanup
activities. While the State law cannot provide liability relief
from federal requirements, there would still be liability under
federal law for cleanups that result in unauthorized discharges
to surface water bodies that are covered under the Clean Water
Act (such as in the case of Penn Mine). However, there are
waters that are not protected under the Clean Water Act but
which are protected under Porter-Cologne, such as groundwater.
In those cases, there would only be potential liability under
state law for actions that we may take to clean up, or partially
clean up, water contamination.
Criminal Vs Civil Liability . This bill provides protection from
both civil and criminal liability for the State Water Board at
cleanup sites. While the language was modeled after the
provisions of the Health and Safety Code that provides liability
immunity for the DTSC, the goal of the bill is to avoid delays
in environmental clean-up. It is less clear how the protection
from criminal prosecutions would be a necessary component of
this protection.
Suggested amendments :
The author may wish to limit the liability protection to civil
cases by removing the criminal
13304 of the Water Code by stinking the criminal liability
provisions of section 13304(a) (5) (a).
Prior Legislation :
AB 440 (Gatto), Chapter 588, Statutes of 2013) provides
liability protections for local agencies that clean up
brownfield sites in blighted areas, similar to the liability
protection that is being proposed for the State and Regional
Water Boards.
REGISTERED SUPPORT / OPPOSITION :
Support
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California State Water Resources Control Board (Sponsor)
Clean Water Action
Opposition
None on file.
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965