BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2442|
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THIRD READING
Bill No: AB 2442
Author: Gordon (D), et al.
Amended: 7/1/14 in Senate
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 5-2, 6/18/14
AYES: Hill, Hancock, Jackson, Leno, Pavley
NOES: Gaines, Fuller
SENATE JUDICIARY COMMITTEE : 5-2, 6/24/14
AYES: Jackson, Corbett, Lara, Leno, Monning
NOES: Anderson, Vidak
ASSEMBLY FLOOR : 52-22, 5/8/14 - See last page for vote
SUBJECT : Porter-Cologne Water Quality Control Act: remedial
action: liability
SOURCE : State Water Resources Control Board
DIGEST : This bill provides the State Water Resources Control
Board (SWRCB) and the regional boards with limited protection
from civil liability related to investigating and cleaning up
water pollution.
ANALYSIS :
Existing law:
1.Requires, under the Porter-Cologne Water Quality Control Act
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(Porter-Cologne), a person who discharges waste into the
waters of the state in violation of waste discharge
requirements or other order or prohibition issued by a
California regional water quality control board (regional
boards) or the SWRCB to clean up the waste or to abate the
effects of the waste.
2.Authorizes the SWRCB and regional boards to investigate actual
or suspected waste discharges that threaten water quality.
Provides that if no viable responsible party (RP) or
discharger is identified for a polluted site, the SWRCB or
regional boards may contract for the cleanup.
3.Authorizes the SWRCB and the regional 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.
4.Provides liability immunity for the Department of Toxic
Substances Control (DTSC) to enter upon any lands for the
purpose of taking removal or remedial action.
5.Authorizes, under the Polanco Act, a local agency to
investigate and clean up releases or spills within the
boundaries of the local agency, and provides immunity from
further liability to the local agency and any person who
enters into an agreement with that local agency to develop the
property as well as future property owners. Defines "local
agency" as a county, a city, a city and county, or a housing
authority.
This bill:
1.Provides that if the SWRCB or a regional 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:
A. Neither the SWRCB nor a regional board shall be held
liable in a civil proceeding for trespass or any other acts
that are necessary to carry out investigations or
corrective actions authorized under existing law.
B. The SWRCB, regional board, or any authorized person
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shall not incur any obligation to undertake additional
investigation, cleanup, abatement, or other remedial work,
solely as a result of having conducted the work.
1.Prohibits the SWRCB, regional board, or any authorized person
from incurring any obligation to undertake additional
investigation, cleanup, abatement, or other remedial work
solely because of its decision to undertake that work.
2.Requires that these provisions apply to a claim against a
public entity presented on or after January 1, 2015, or, if no
claim is presented, to a cause of action in a civil complaint
or a writ petition filed on or after January 1, 2015.
3.Makes various technical, nonsubstantive changes.
Background
Penn Mine Case . The liability for the SWRCB and the regional
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 Regional Water Quality Control Board constructed a
remediation project in an attempt to reduce the impacts caused
by acid mine drainage from the abandoned mine. The Central
Valley regional 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 Municipal Utility District
(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
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 Central Valley regional board
or EBMUD from liability under the Clean Water Act, the district
court was correct in establishing state liability of their
cleanup activities. While state law cannot provide liability
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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.
State Remediation Intervention . The SWRCB, regional boards, and
the DTSC have statutory authority and responsibility for the
oversight of remediating contaminated water and land in
California.
The regional boards or the DTSC generally enter into a cleanup
and abatement order with RPs to require the RP to conduct or
contract for the cleanup of the contaminated site.
When there is not a viable RP or the RP is found unable to pay
for the remedial action, contaminated brownfield sites languish
potentially causing economic, environmental and public health
harm.
As funds are available, and sites are identified that are in
need of state intervention, the state's cleanup agencies (DTSC,
SWRCB and regional boards) investigate and cleanup contaminated
sites to prevent further environmental and human health harm.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 7/1/14)
State Water Resources Control Board (source)
ARGUMENTS IN SUPPORT : According to SWRCB, the sponsor of this
bill:
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.
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Under current law, SWRCB 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.
ASSEMBLY FLOOR : 52-22, 5/8/14
AYES: Alejo, Ammiano, Atkins, Bloom, Bocanegra, Bonilla, Bonta,
Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Chesbro, Cooley, Dababneh, Daly, Dickinson, Fong, Frazier,
Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray, Hall, Roger
Hern�ndez, Holden, Jones-Sawyer, Levine, Lowenthal, Medina,
Mullin, Muratsuchi, Nazarian, Pan, Perea, Quirk, Quirk-Silva,
Rendon, Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting,
Weber, Wieckowski, Williams, Yamada, John A. P�rez
NOES: Allen, Bigelow, Ch�vez, Conway, Dahle, Donnelly, Fox,
Beth Gaines, Grove, Hagman, Harkey, Jones, Linder, Logue,
Maienschein, Melendez, Nestande, Olsen, Patterson, Wagner,
Waldron, Wilk
NO VOTE RECORDED: Achadjian, Eggman, Gorell, Mansoor, V. Manuel
P�rez, Vacancy
RM:k 7/2/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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