BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2442 (Gordon)
As Amended June 4, 2014
Hearing Date: June 24, 2014
Fiscal: No
Urgency: No
TH
SUBJECT
Porter-Cologne Water Quality Control Act: Remedial Action:
Liability
DESCRIPTION
This bill would provide immunity from civil liability to the
State Water Resources Control Board, Regional Water Boards, and
their contractors, for actions taken in furtherance of an
investigation, cleanup, abatement, or other remedial work,
unless the action was performed in a reckless manner. This bill
would also state that the above entities shall not incur any
obligation to undertake additional investigation, cleanup,
abatement, or other remedial work, solely as a result of having
taken such actions.
BACKGROUND
The Legislature passed the Porter-Cologne Water Quality Control
Act (Act) in 1969 which granted the State Water Resources
Control Board and nine Regional Water Quality Control Boards
with broad duties and powers to preserve and enhance all
beneficial uses of the waters of the state. (See Wat. Code Sec.
13000 et. seq.) Among other things, the Act grants the state
and regional water boards the authority to regulate discharges
of pollutants, to issue cleanup and abatement orders to those
who discharge waste in violation of the Act, and to undertake
cleanup, abatement, and remedial actions. For cleanup actions
undertaken by a state or regional water board, the Act
authorizes the board to bring a cost recovery action against the
parties responsible for discharging the waste.
(more)
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Under existing law, the state and regional water boards may
incur liability for any independent harm caused by their cleanup
activities to the same extent as any other party. (See Gov.
Code Sec. 815.2.) Some stakeholders have identified this
potential for liability as a factor that limits the willingness
of the boards to engage in cleanup activities. One stakeholder,
the Clean Water Fund, has suggested that limiting the liability
of the boards may incentivize them to undertake more cleanups.
In its December 2013 report "Cleaning up California's Polluted
Waters," Clean Water Fund states:
Cleanup or actions to stop the spread of pollution performed
by government agencies such as the water boards can enhance
water remediation programs. The Regional Boards do have
authority, albeit subject to limitations, to remediate certain
pollution sources when the responsible party is recalcitrant
or unknown. They are, however, reluctant to do so because
under current "Good Samaritan" laws, once they get involved
they are then permanently considered a "responsible party" and
potentially subject to a heavy burden of liability for even
limited actions. Good Samaritan laws, therefore, can have a
chilling effect on state action.
There are two categories of "Good Samaritans." The first
includes non-governmental agencies and is governed by federal
law. Thus any changes to the law would have to be done at
that level. The second category consists of government
agencies and is under state jurisdiction. While current state
law provides the Department of Toxic Substances Control with a
limited degree of liability protection when they enter and
take action at a hazardous site, the water boards do not have
the same explicit protections.
While it would be unwise to eradicate liability needed to
protect environmental and environmental justice interests,
workshop participants did recommend working with the
California Legislature to define and provide reasonable limits
to liability for the water boards within the State's water
code. (Ventura and Gordon, Cleaning up California's Polluted
Waters (Dec. 2013) [as of June 22, 2014]
p. 17.)
This bill would provide immunity from civil liability to the
state water board, a regional water board, or any authorized
person for damages or penalties resulting from any act or
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omission taken in furtherance of any investigation, cleanup,
abatement, or other remedial work unless the act or omission was
performed in a reckless manner. This bill would also provide
that the state water board, a regional water board, or any
authorized person would not incur any obligation to undertake
additional investigation, cleanup, abatement, or other remedial
work solely because of its decision to undertake that initial
work.
CHANGES TO EXISTING LAW
Existing law provides that any person who discharges waste into
the waters of this state in violation of any waste discharge
requirement shall, upon order of the regional water board, clean
up the waste or abate the effects of the waste. (Wat. Code Sec.
13304(a).)
Existing law provides that a regional water board may expend
moneys to perform any cleanup, abatement, or remedial work
required to prevent substantial pollution, nuisance, or injury
to any waters of the state. (Wat. Code Sec. 13304(b).)
Existing law provides that a regional water board shall be
permitted reasonable access to the affected property as
necessary to perform any cleanup, abatement, or other remedial
work. Existing law also provides that a regional water board
may contract with a water agency to perform, under the direction
of the regional board, investigations of existing or threatened
groundwater pollution or nuisance. (Wat. Code Sec. 13304(b).)
Existing law provides that if the waste is cleaned up or the
effects of the waste are abated other necessary remedial action
is taken by any governmental agency, the person or persons who
discharged the waste are liable to that governmental agency to
the extent of the reasonable costs actually incurred in cleaning
up the waste, abating the effects of the waste, supervising
cleanup or abatement activities, or taking other remedial
action. (Wat. Code Sec. 13304(c).)
Existing law 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,
except as otherwise provided by statute. (Gov. Code Sec. 815.)
Existing law provides that a public entity is liable for injury
proximately caused by an act or omission of an employee of the
public entity within the scope of his employment if the act or
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omission would have given rise to a cause of action against that
employee or his personal representative. (Gov. Code Sec.
815.2.)
Existing law provides that where a public entity is under a
mandatory duty imposed by an enactment that is designed to
protect against the risk of a particular kind of injury, the
public entity is liable for an injury of that kind proximately
caused by its failure to discharge the duty unless the public
entity establishes that it exercised reasonable diligence to
discharge the duty. (Gov. Code Sec. 815.6.)
This bill would provide that if the state or a regional water
board, either directly or by contracting for services,
undertakes to perform an investigation, cleanup, abatement, or
other remedial work, both of the following shall apply:
the state board, regional board, or any authorized person
shall not be civilly liable for damages or penalties for any
act or omission in furtherance of any investigation, cleanup,
abatement, or other remedial work, unless the act or omission
was performed in a reckless manner; and
the state board, regional board, or any authorized person
shall not incur any obligation to undertake additional
investigation, cleanup, abatement, or other remedial work,
solely as a result of having conducted the work.
This bill would define "authorized person" to mean any of the
following:
an employee or independent contractor of the state board or
regional board;
a person from whom investigation, cleanup, abatement, or other
remedial work is contracted by the state board or regional
board; and
an employee or independent contractor of either of the above.
This bill would specify that the above immunities shall apply to
claims presented and to causes of action in civil complaints or
writ petitions filed on or after January 1, 2015.
COMMENT
1. Stated need for the bill
The author writes:
Under current law, the Water Boards can perform, or contract
for, the investigation, cleanup, abatement, or remedial work
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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 clean up water pollution problems
that may threaten public health or the environment due to
liability concerns including:
[p]otential liability claims that the Water Boards'
actions at a site makes them a responsible party and that
their limited actions at a site did not fully protect all
affected persons[;]
[c]laims for reimbursement of incidental property
damage[;] or
[p]otential negligence, nuisance or trespass claims,
including those that may arise from pollution migrating
away from the site where the Water Boards performed an
investigation or cleanup.
As a result, even when the Water Boards are faced with a
severe pollution problem and there is no apparent financially
viable responsible party (so-called "orphan sites," like, for
instance, historical releases from dry cleaner facilities),
the Water Boards may decline to act due to liability concerns.
This concern may sometimes cause the Water Boards to avoid
expending available resources to address a significant portion
of a water quality problem, even where it can be done in a
low-cost manner.
Current law provides liability protection to the Department of
Toxic Substances Control and its contractors from civil or
criminal trespass, or other acts necessary to carry out
corrective action under the Hazardous Substance Account Act.
Existing law also provides limited immunity to the Water
Boards and other third parties who voluntarily undertake
cleanup of abandoned mine sites, but this liability protection
only applies to mine cleanups and does not extend to threats
to water quality that are not associated with mines.
This bill would provide the Water Boards with explicit
protection from civil liability related to investigating or
cleaning up water pollution. This would remove a significant
barrier in current law that deters the Water Boards from
taking actions to investigate, prevent or clean up pollution.
This bill would largely address the Water Boards' concerns
over potential liability claims that a limited action by the
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State Water Board or Regional Water Board to investigate or
cleanup a site did not fully protect all affected persons, and
claims for reimbursement of incidental property damage or
other tort claims that may arise in connection with a Water
Board's investigation or cleanup.
This change in law would enable the Water Boards to more
freely (1) undertake partial investigations to determine
whether or not water is polluted to an extent that would
warrant further action at a site, and (2) choose to address a
pollution source to remedy or prevent an immediate health
risk, but not become subject to claims that the Water Boards
are responsible for conducting additional work at the site.
This will result in restoration of sites and protection of
water quality to meet water quality standards, and reduce
present and potential hazards to health and the environment.
2. Liability of Public Entities
California law generally provides public entities with tort
immunity that insulates them from civil liability, including
liability resulting from injuries caused by water pollution
abatement activities. The California Tort Claims Act (Gov. Code
Sec. 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. (Gov. Code Sec. 815(a).)
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 the public entity's 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. (See Brown v. Poway
Unified School Dist. (1993) 4 Cal.4th 820, 829 ["a public entity
is not liable for injuries except as provided by statute"].)
Liability against the state water board, a regional water board,
or its contractors, might attach in situations where an employee
of these entities acts or fails to act in a manner that
ultimately leads to an injury. Government Code Section 815.2
removes immunity under certain conditions when an injury
proximately results from the act or omission of an employee of a
public entity. This section provides that "a public entity is
liable for injury proximately caused by an act or omission of an
employee of the public entity within the scope of his employment
if the act or omission would have given rise to a cause of
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action against that employee or his personal representative."
(Gov. Code Sec. 815.2.) Thus, if a public employee knew of the
existence of a particular fault in a water cleanup plan, such as
the likelihood that a particular cleanup activity would result
in or exacerbate water pollution migration, and yet failed to
take any corrective action to mitigate that known harm, the
employing public entity might incur some civil liability if an
individual was injured or their property was damaged because of
the faulty planning and subsequent cleanup activities.
As a matter of policy, the Legislature has generally been
reluctant to further immunize the acts of public employees and
public agencies except in narrow circumstances. Immunity from
liability disincentivizes careful planning and acting on the
part of governmental actors. When an agency enjoys immunity
from civil liability, it is relieved of the responsibility to
act with due regard and an appropriate level of care in the
conduct of its activities. Immunity provisions are also
disfavored because they preclude parties from recovering when
they are injured, and force injured parties to absorb losses for
which they are not responsible.
Staff notes that the Legislature has, in the past, provided
additional immunities to agencies tasked with remediating
environmental contamination. For example, Section 25358.1 of
the Health and Safety Code immunizes the Department of Toxic
Substances Control from liability for certain acts that are
necessary to carry out corrective actions. However, this
immunity is the exception, not the norm. Rather, the normal
course is to hold government agencies and their employees to the
same standard as all other actors. Indeed, the California Tort
Claims Act broadly represents the Legislature's preference to
hold state agencies to the same level of care that all other
Californians must adhere to under like circumstances. The
immunity proposed in this bill is especially troubling because
it explicitly extends the state and regional water board's
immunity to its contractors and their subcontractors. Further,
it should be noted that the proposed immunity would not only
protect the boards and their contractors from having to pay
damages in a civil suit, it may also preclude litigants from
being able to use injunctive relief to force these actors to
alter planned cleanups. (See Esparza v. County of Los Angeles
(2014) 224 Cal.App.4th 452, 460 [plaintiffs may not circumvent
legislative immunity by obtaining injunctive relief].)
If the Committee believes some measure of immunity ought to be
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provided to the state and regional water boards, the better
course of action may be to replicate the immunity provision
already granted to the Department of Toxic Substances Control
for similar cleanup activities. That immunity, unlike the one
proposed in this bill, explicitly extends only to those actions
"necessary" to carry out a corrective action.
Suggested Amendment :
On page 4, strike lines 8 through 12, and insert: (i) Neither
the state board nor a regional board shall be held liable in a
civil proceeding for trespass or for any other acts which are
necessary to carry out investigations or corrective actions
authorized by this section.
Support : Clean Water Action
Opposition : None Known
HISTORY
Source : State Water Resources Control Board
Related Pending Legislation : SB 1130 (Roth, 2014) would provide
limited immunity from liability relating to the reconstruction
of a public water system in Riverside County for the Eastern
Municipal Water District, the Elsinore Valley Municipal Water
District, the Western Municipal Water District, and the
Metropolitan Water District of Southern California. SB 1130 is
in the Assembly Committee on Appropriations.
Prior Legislation :
AB 440 (Gatto, Ch. 588, Stats. 2013) provided, among other
things, limited immunity to local agencies that undertake and
complete certain environmental cleanup actions in accordance
with an approved cleanup plan.
AB 389 (Montanez, Ch. 705, Stats. 2004) provides limited
immunity to purchasers of abandoned mining sites, provided
certain investigations and cleanup actions are taken.
SB 47 (Sher, Ch. 23, Stats. 1999) reauthorized the state
Superfund law and reconveyed limited immunity to the Department
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of Toxic Substances Control for certain removal or remedial
actions, as specified.
Prior Vote :
Senate Committee on Environmental Quality (Ayes 5, Noes 2)
Assembly Floor (Ayes 52, Noes 22)
Assembly Committee on Environmental Safety and Toxic Materials
(Ayes 5, Noes 2)
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