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HomeMy WebLinkAbout1992-04-28 - AGENDA REPORTS - STATE LEGISLATION (2)AGENDA REPORT City Manager pprova Item to be presented by: CONSENT CALENDAR Michael P. Murphy DATE: April 28, 1992 SUBJECT: State Legislation DEPARTMENT: City Manager BACKGROUND Upon the recommendation of the California Contract Cities Association, Councilmember Boyer requests that the Santa Clarita City Council consider support for Assembly Bill 181 (Tanner) relating to immunity for public entities providing incidental solid waste handling services. The California Contract Cities Association and the League of California Cities support Assembly Bill 181. This measure would exempt from the definition of "responsible party" or "liable person" and therefore from Superfund liability, any local agency which, on or before January 1, 1990, provided incidental solid waste handling services and whose liability is based "solely because of the act of providing those services." "Incidental solid waste handling services" means the issuance, by a city, county, district, or other local agency, of a business, professional or trade license, a private refuse collector permit, or special or use permit to a solid waste. hauler. The exempted services would also include exclusive or non-exclusive franchise agreement(s) or contract(s) as long as the disposal site is left to the discretion of the hauler. The purpose of the bill is to limit the liability of local governments from state Superfund liability. The legislation stems from recent efforts by large corporations held liable for cleanup costs of a Superfund:site to force other alleged polluters of a site to share in cleanup costs. Local governments contend- that the mere act of arranging for the transporting of .solid waste for disposal should not open them up to potentially major liability. Liability is presently assessed in some cases based on the proportional share of site utilization of which a local jurisdiction may have a disproportionate share. For example, a city could incur 80S cleanup responsibility if the agency is responsible for 80% of disposal at the site, even though another site user actually caused the contamination. This bill would also allow the California Department of Health Services Toxic Substances Control Division to determine a local .agency's liability for site cleanup costs and apportioned share of those costs. The 'Western States :Petroleum Association measure, citing an argument which asserts Superfund site cleanup will fall to private granted relief from liability. is leading the fight against the that a disproportionate share for industry if local governments are Agenda Item. Page 2 The United States 1989 which stated Superfund cleanup ordinary garbage whether or not to level. RECOMMENDATION Environmental Protection Agency issued a policy in December, that local agencies would not be sued by EPA under federal cost recovery when their only involvement was to provide disposal services. The Congress is reportedly evaluating legislatively extend these same protections at the national Support Assembly Bill 181 and transmit statements of support to Assembly Member Tanner, the Santa Clarita state legislative delegation, appropriatelegislative committees, California Contract Cities Association and the League of California Cities. MPM:233 Al m 21 ZENTA-E �2.iED _.."f ?-Hi!?I.7 J� iJAAY a, 19?= _ntr^.duced by Assembly Member Tanner January 3, 1991 gage . An act to amend Section 25363 of, and to add Sections 25323.7 and 25363.5 to, the Health and Safety Code, relating to hazardous substances. LEGISLATIVE COUNSEL'S DIGEST AB 181, as amended, Tanner. Hazardous substances liability. Existing law, the Carpenter -Presley -Tanner Hazardous Substance Account Act, provides for the recovery of costs incurred and payable from the Hazardous Substance Account or Hazardous Substance Cleanup Fund for remedial and removal actions to hazardous substance release sites from the liable person. The terms "liable person" and "responsible party" are defined for purposes of the act with reference to the federal Comprehensive Response, Compensation, and Liability Act of 1980, which generally makes liable the owners and operators of hazardous substance facilities and the transporters and disposers of hazardous.,substances, except as specified. Any partyfound-liable for these costs'is required to pay only for;1the,portion of;the costs attributable to that party's action, if the,rpc�sty,esthhxishe$"'this attribution by a preponderance of the evidence ,tiYxnl'essFthe,,rtCier3Fi#'fact finds the evidence insufficient to establish eacli>'phrty"s portibn;`of the costs or expenditures. This bill woyld define the Germ "responsible party" and "liable person" to'excludd-any tityt bounty, -district, or other local agency which, on or before'.January 1,'1990, provided incidental solid waste handling services, as specified, solely because of thg act of providing those services. The bill would require the [D> Department of Toxic Substances Control <D] [A> trier of fact <A] to make a specified finding concerning the contamination of a hazardous substance release site where the [D> department <D] [A> trier of fact <A] determines that a city, ounty, district, or other local agency is, or may be, a responsible' " arty or a potentially responsible party for that site as a result of that local agency's provision of nonincidental solid waste handling services. The bill would require that, if the [D> department <D] [A> trier of fact <A] makes that finding, [D> liability for the.site is to be based on <D] [A> , when apportioning liability for the site, the trier of fact would be required to -consider, but not be limited to,.<A] ra Ann lei 04/10;92 �.pe.ified [A> equitable <A] criteria. ajcrity. Appropriation: no. F.= a1 -_ __• •-- tate-+an'ated local program: no. Thi pe le "e .`tate of California !. enact is f•_L'_,c:s: Page 2 �E=_.Cll 1, Sect -i -n 25323.' is added to the Health and Safety Code, _d• Netuithstandirg this chapter, "responsible party" or l:abl_ er=_n7 does not include any city, :ounty, district, :r -then _, cal agency which, on or before January 1, 1990, provided incidental sol -4i ;taste ,andling services, solely because .of the act of providing those services. (b) For purposes of this section, "incidental solid waste handling services" means any of the following services: (1) The issuance, by a city, county, district, or other local agency, of any of the following to a solid waste hauler: (A) Business license. 0 (B) Private refuse collector permit. (C) Special permit. (D) Use permit. (E) Business, profession, or and trade license. [D> (2) (A) Subject to the exception in subparagraph (B), the <D] [A> (2) The <A] entering into, by a city, county, district, or other local agency [D> entering, -,<D], -'of any - of the following with a'solid '- waste hauler [A> (A > n [A> (B) <A] Nonexclusive franchise agreement. [D> (iii) <D] [A> (C) <A] Contract. D> (B) If the franchise agreement or contract contains a provision pursuant to which the local. agency requires the solid waste hauler to dispose of the collected waste at a specifically named waste disposal site, the franchise agreement or contract entered into by the local agency shall not be deemed an incidental solid waste handling service. <D] CA AB lel • ;7? The direct participation by a:_ity,-oun`y, iirtrict, ar other _ cal -,en7v 4n the collection, handlr '.ispcsal of solid waste, or s:nership ,D> or operation of <D; 'a> of, orerati.,n )f, or .l . r ati� •i --lection for disposal at, <A] a ._olid waste disposal facility, n-_ to •1q,:ped an incidental "rapte h_rdl`_nu 04/10/92 Page 3 tl:e Health and Safety _ode is amended to read: '15363, (a; -,s r)vided in subdivision (f) and in Section 35363.5 a:y found liable for any costs or expenditures this chapter who establishes by a preponderance the evidence that only a prrtion of those costs or expenditures are attributable t:� that party's actions, shall be required to pay only for that portion. (b) Except as provided in subdivision (f) and in Section 25363.5, if the tris of Fact finds the evidence insufficient to establish each party's portion of costs or expenditures under subdivision (a), the court shall apportion those costs or expenditures, to the extent practicable, according to equitable principles, among the defendants. (c) The state account shall pay any portion of the judgment in excess of the aggregate amount of costs or expenditures apportioned under subdivisions (a) and (b). (d) The standard of liability for any costs or expenses recoverable pursuant to this chapter is strict liability. (e) Any person who has incurred removal or remedial action costs in accordance with this chapter or the federal act may seek to recover these costs from any person who is liable pursuant to this chapter, except that no claim may beassertedagainst a person whose liability has been determined and which has been or is being, fully discharged pursuant to Section 25356.6, or against a person who is actively participating in a pending apportionment proceeding pursuant toa:Section 25356.6. An action to enforce;•a.claim may be brought as a cross-complaint.by,any.defendant,,::in•an action brought.pursuant to Section 2536@,;or•.iris$eparatgaction after the person seeking cost recovery has pa idxemoval;or,.remedial action costs in accordance with this chaptex'pi'%th' €ederaldactu'Irr resolving claims for cost recovery; the court may :allocate costs;airiong'liable parties using those equitable factors whicWare appropriate (f) Notwithstanding this chapter, any response action contractor, as defined in subdivision (h) of Section 25364.6, who is.,found liable for any costs or expenditures recoverable under this chapter and -who establishes by a preponderance of the evidence that only a portion of those costs or expenditures are attributable to the response action'` contractor's actions, shall be required to pay only that portion of the �osts or expenditures attributable to the response action contractor's' ctions. SEC. 3. Section 25363.5'is added to the Health and Safety Code, to• read: CA AB 181 04%10/92 Page 4 .[C> 25363.5. (a) At any hazar?cus }-•t:__- .elease site where the �_artment letermines that a city, _"_59.5. (a), In any action for 'ability for costs incurred : •:n= -- this chapter at a hazarl,:uE soba_.__ release ..its, where '•f fa -t dpternin?s that 3 7ity, <A] district, or other :r ..�_�y }:a, 3 r?Si-on=lb:e party Cr ,3 pritopti311y -� ihle arty as a result of the lor_al agency's provision of non'_^cid ntal s waste handling services, the [D> department <D] ?> trier Df fact <A] shall make a finding as to whether the hazardous . ;bs ,.nce.. ;>_esent in the solid waste disposed cf by the [A> city, :ntj, '-?=_-- :r -Dther <A] '-gal-,gency at that site _cnt :bated to the ccnditicns'of contamination which exist at the site. If the [C> 9=.partr:er.t <r] [A> trier of fact <A] finds that these hazardous substances lid :Hake such a contribution, liability for the costs and �::renditures recoverable under this chapter for the site shall be apportioned [D> based on all the following equitable criteria: <D] [A> . In making this apportionment, the trier of fact shall consider, but not be limited to, the following equitable criteria: <A] (1) The amount of hazardous substances for which the local agency may be responsible. (2) The degree of toxicity of the hazardous substances for -which the 0local agency may be responsible. (3) The degree to which the disposal of solid waste containing hazardous substances by the local agency engendered the necessity for the removal or remedial action. (4) The degree to which the disposal of solid waste containing hazardous substances by the local agency contributed to the costs of removal or remedial action. (5) The degree of involvement of the local agency in the generation, transportation, treatment;.; or :disposal of the hazardous substances.'— (6) ubstances.-(6) The degree�of_c�re pxergised by the local agency -with -respect to the hazardous�^ , stance8;�taking"-`into account the characteristics of the substances �' "' (7) state c the local agency with federal and iman health and the environment. (b) This section does not -affect the liability of a city, county, district, or other local agency for its negligent, wrongful, or unlawful acts. (c) This section does not apply to a city, county,.district, or other local agency with regard to a solid waste disposal-facility,issued Wpermit under Part 4 (commencing with Section 43000) of Division 30 of e Public Resources Code which, is owned or operated by that local agency. (d) For purposes of this section, "solid waste" has the same meaning as in Section 40191 of the Public $esources Code, and "nonincidental • I• P. AB 131 04/10'9" Pago- 5 g- olid -'.rite handling services" mess the=?_:'_ces inich are not solid waste handling s__ . _ r -_s, __ 3efined _.. �?-,h livisien ;b} e_ _... 25323.7. 127 "F 0 CA AD 181 Amended ' ASSEt1DLY DILL 04/10/92 AIIENDED IN SENATE APRIL 2, 1992 AMENMED IN SENATE MARCH 23, 1992 AMENDED IN ASSEMBLY JANUARY 9, 1992 Introduced by Assembly Member Tanner January 3, 1991 An act to emend Section 25363 of, and to add Sections 25323.7 and 25363.5 to, the Health and Safety Code,'relating to hazardous substances. LEGISLATIVE COUNSEL'S DIGEST AD 181, as amended, Tanner. Hazardous substances liability. Existing law,.the Carpenter -Presley -Tanner Hazardous Substance Account Act, provides for the recovery of costs incurred and payable from the Hazardous Substance Account or Hazardous Substance Cleanup Fund for rer,:edial and removal actions'to hazardous substance release sites from the liable person. The terms "liable person" and "responsible party" are defined for purposes of the act with reference to the federal Comprehensive Response, Compensation, and Liability Act ,of 1980, which generally makes liable the ouners and operators of hazardous substance facilities and the transporters and disposers of hazardous substances, except as specified. Any party found liable for these costs'is required to pay only for the portion of the costs attributable to that party's action, if the party establishes this attribution by a preponderance of the evidence, unless the trier of fact finds the evidence insufficient: to establish each party's portion of the costs or expenditures. This bill would define the term "responsible party" and "liable person" to exclude any city, county, district, or other local agency which,; on or before January 1,1990, provided incidental solid waste handling services, as specified, solely because of the act of providing those services. The bill would require the [D> Department of Toxic substances Control <D] [A> trier of fact <A] to make a specified finding concerning the contamination of a hazardous'substance release site where the [D> department <D] [A> trier of fact <A] determines that a city, county, district, or other local agency is, or may be, a responsible party or a potentially responsible party for that site as a result of that local agency's provision',of'nenincidental solid waste handling services. The bill would require"that, if the [D> department <D] [A> trier of fact <A] makes that finding, [D> liability for the site is -to be based on <D] [A> , when apportioning liability for the site, the trier of fact would be required to consider, but not be limited to, <A] CA AH 181 04/10/92 Page 2 specified [A> equitable <A] criteria. _ Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. The people of the State of California do enact as follows: ' SECTION 1. Section 25323.7 is added to the Health and Safety Code, to read: 25323.7. (a) Notwithstanding this chapter, "responsible party" or "liable person" does not include any city, county, district,'or other' local agency which, on or before January 1, 1990, provided incidental solid-waste handling services, solely because of the act of providing those services. (b) For purposes of this section "incidentalso 'd waste handling services" means any of the following services: (1) The issuance b a cit count district or other local r Y Yr Yr r agency, of any of the following to a solid waste hauler: (A) Business license. (B) Private refuse collector permit. (C) Special permit. (D) Use permit. (E) Business, profession, or and trade license. [D (..) (A) Subject to the _xception.in subparagraph (B), the D] [A> (2) The <A] entering into, by a city, county, district, or other local agency [Di entering, <D] of any of the following with a solid waste hauler: JD> (i) <Dl [A> (A) <A] Exclusive franchise agreement. [D> (ii) <D] [A> (B) <A] Nonexclusive franchise agreement. [D> (iii) <D]: [A> (C) <A] Contract. [D> (B) If the franchise agreement or contract contains a provision pursuant to which the local agency requires the solid waste hauler to dispose of the collected waste at a specifically named vaste disposal site, the franchise agreement or contract entered into by the local agency shall not be deemed an incidental solid waste handling service. <DJ CA AH 181 ©4/10/92 Page 3 (c) The direct participation by.a city, county, district, or other local,agency in the collection, handling, or disposal of solid waste, or in the ownership (D> or operation of <D] [A> of, operation of, or design of, or selection for disposal at, <A] a solid waste disposal facility, shall not be deemed an incidental.solid waste handling service. SEC. 2. Section 25363 of the Health and Safety Code is amended to read: 25363. (a) Except as provided in subdivision (f) and in Section 25363.5, any party found liable for any costs or expenditures recoverable under this chapter who establishes by a preponderance of the .evidence that only a portion of those costs or expenditures are attributable to that party's actions, shall be required to pay only for I_ that portion. (b) Except as provided in subdivision (f) and in Section 25363. 5, if the trier of fact finds the evidence insufficient to establish each party's portion of costs or expenditures under subdivision (a), the court shall apportion those costs or expenditures, to the extent practicable, according to equitable principles, among the defendants. (c) The state account shall pay any portion of the judgment in excess of the aggregate amount of costs or expenditures apportioned under subdivisions (a) and (b). (d) The standard of liability for any costs or:expenses recoverable pursuant to this chapter is.strict liability. (e) Any person who has incurred removal or.remedial action costs in accordance with this chapter or the federal act may seek to recover these costs from any person who is liable pursuant to this chapter, except that no claim may be asserted against a person, whose liability has been determined and which has been or is being, fully discharged pursuant to Section 25356.6, or against a person who'is actively participating in a pending apportionment proceeding pursuant'to Section 25356.6. An action to enforce a claim may be brought as a cross-complaint by any defendant in an action brought pursuant to Section 253613, or in'a separate action after the person seeking cost recovery has paid removal or remedial action costs in accordance with this chapter or the federal act. In resolving claims for cost recovery, the court may allocate costs among liable parties using those equitable factors which are appropriate. (f) Notwithstanding this chapter, any response action contractor, as defined in subdivision (h) of Section 25364.6, who is found liable for any costs or expenditures recoverable under this chapter and who establishes by a preponderance of the evidence that only a portion of those costs or expenditures are attributable.to the response action contractor's actions, shall be required to pay only that portion of .the costs or expenditures attributable to the response action contractor's. actions. SEC. 13. Section 25363.5 is added to the Health and.Safety Code, to read: - [D> 25363.5. (a) At any hazardous substance release site where the department determines that a city, county, <D] [A> 25363.5.; (a) In any action for liability for costs incurred pursuant tothis chapter at a hazardous substance release site, where the trier of fact determines that a city, county, <A] district, or other local agency is, or may be;,a responsible party or a potentially responsible party as a result of the local agency's provisicn of -nonincidental solid waste handling services, the [D>.department <D] -[A> trier of fact <A] shall make a finding as to whether the hazardous substances present in the solid waste disposed of by the [A> city, county, district, or other <A] local agency at that site contributed to the conditions of contamination which exist at the site. If the [D> department <D] [A> trier of fact <A] finds that these hazardous substances did make such a contribution, liability for the costs and expenditures recoverable under this chapter for the site shall`be .apportioned [D> based on all.the following equitable criteria: <D] [A> In making this apportionment, the trier of fact shall consider, but not be limited to, the following equitable criteria: <A] (1) The amount of hazardous substances for which the local agency may be responsible. (2) The degree of toxicity of the hazardous substances for which the. local agency may be responsible. (3) The degree to which the disposal of solid waste containing hazardous substances by the local agency engendered the necessity for the removal or remedial action. (4) The degree to which the disposal of solid waste containing hazardous substances by the local agency contributed to the costs of removal or remedial action.' (5) The degree of involvement of the local agency in the generation, transportation, treatment, or disposal of the hazardous substances. (6) The degree`of:care.exercised 'by the local agency with respect to the hazardous.substances, taking into account the characteristics of the substances: (7) The degree of cooperation by the local agency with federal and state officials to prevent harm to human health and the environment. (b) This section does not affect the liability of a city, county, district,:or other local.agency for its negligent, wrongful, or unlawful acts: '(c) This section does not apply to a city, county, district, or other local agency with regard to a solid baste disposal facility issued a permit under Part 4 (commencing with Section 43000) of Division 30 of the Public Resources Code which is o,med or operated by that local agency. (d) For purposes of this section, "solid ,caste" has the same meaning as in Section 40191 of: the Public Resources Code, and "nonincidental I 24519 Breckenridge Place Newhall, CA 91321 April 28, 1992 Mayor Jill Klajic and Members City Council City of Santa Clarita 23920 Valencia Blvd. Santa Clarita, CA 91355 Dear Mayor and City Council Members: I am unable to attend tonight's City Council Meeting at which you will decide to submit a "wish list" to Congressman Berman or to oppose a landfill in Elsmere Canyon under any circumstances. For the past few years, the City of Santa Clarita has been opposed to a landfill in Elsmere Canyon because of the detrimental affects which always accompany urban landfills and because Elsmere Canyon simply is not suitable for a dump because of the environmental degradation and the possible contamination of the ground water. If time permitted, I could go into much more detail in regards to alternatives to a landfill in Elsmere Canyon, and would provide figures which prove that the L.A. County Sanitation Districts are mis-representing the need for a mega -dump within the next few years. It is obvious that BKK, the City and County of Los Angeles, The Santa Monica Mountains Conservancy and Congressman Berman are trying to hurry -up the process to facilitate a land swap. They are too willing to sacrifice Elsmere Canyon and the Santa Clarita Valley for their own political gains. I, on behalf of the Santa Clarita Valley Canyons Preservation Committee, urge you to unanimously oppose any legislation by Congressman Berman and to not submit a "wish list". Very Sincerely, Marsha A. McLean, President S.C.V. Canyons Preservation Committee