(1)Existing law, the Carpenter-Presley-Tanner Hazardous Substance Account Act, imposes liability for hazardous substances removal or remedial actions and requires the Attorney General to recover from the liable person, as defined, certain costs incurred by the Department of Toxic Substances Control or a California regional water quality control board, upon the request of the department or regional board. The act authorizes, except as specified, a party found liable for any costs or expenditures recoverable under the act for those actions to establish, as specified, that only a portion of those costs or expenditures are attributable to the party, and requires the party to pay only for that portion. If each party does not establish its liability, the act requires a court to apportion those costs or expenditures, as specified, among the defendants and the remaining portion of the judgment is required to be paid from the Toxic Substances Control Account. Existing law authorizes the money deposited in the Toxic Substances Control Account in the General Fund to be appropriated to the Department of Toxic Substances Control for specified purposes, including the payment of the costs incurred by the state for those actions.

This bill would specifically apply those provisions to response and corrective actions, instead of to removal and remedial actions, and would delete the requirement that the remaining portion of a judgment for costs and expenditures that is not apportioned among the liable persons be paid from that account.

(2)The act requires an action brought pursuant to it for the recovery of the costs of a removal or remedial action, or for the recovery of specified administrative costs, to be commenced within 3 years after completion of the removal or remedial action has been certified by the department.

This bill would, except as provided, instead allow an action for the recovery of the costs of carrying out or overseeing a response or corrective action to be commenced either within that 3-year period or, if operation and maintenance is required as part of the response or corrective action, within 3 years after completion of operation and maintenance has been certified by the department or a regional board.

(1)Existing law, the Carpenter-Presley-Tanner Hazardous Substance Account Act, imposes liability for hazardous substances removal or remedial actions and requires the Attorney General to recover from the liable person, as defined, certain costs incurred by the Department of Toxic Substances Control or a California regional water quality control board, upon the request of the department or regional board. The act authorizes, except as specified, a party found liable for any costs or expenditures recoverable under the act for those actions to establish, as specified, that only a portion of those costs or expenditures are attributable to the party, and requires the party to pay only for that portion. If each party does not establish its liability, the act requires a court to apportion those costs or expenditures, as specified, among the defendants and the remaining portion of the judgment is required to be paid from the Toxic Substances Control Account. Existing law authorizes the money deposited in the Toxic Substances Control Account in the General Fund to be appropriated to the Department of Toxic Substances Control for specified purposes, including the payment of the costs incurred by the state for those actions.

This bill would specifically apply those provisions to response and corrective actions, instead of to removal and remedial actions, and would delete the requirement that the remaining portion of a judgment for costs and expenditures that is not apportioned among the liable persons be paid from that account.

(2)The act requires an action brought pursuant to it for the recovery of the costs of a removal or remedial action, or for the recovery of specified administrative costs, to be commenced within 3 years after completion of the removal or remedial action has been certified by the department.

This bill would, except as provided, instead allow an action for the recovery of the costs of carrying out or overseeing a response or corrective action to be commenced either within that 3-year period or, if operation and maintenance is required as part of the response or corrective action, within 3 years after completion of operation and maintenance has been certified by the department or a regional board.

(1)Existing law, the Carpenter-Presley-Tanner Hazardous Substance Account Act, imposes liability for hazardous substances removal or remedial actions and requires the Attorney General to recover from the liable person, as defined, certain costs incurred by the Department of Toxic Substances Control or a California regional water quality control board, upon the request of the department or regional board. The act authorizes, except as specified, a party found liable for any costs or expenditures recoverable under the act for those actions to establish, as specified, that only a portion of those costs or expenditures are attributable to the party, and requires the party to pay only for that portion. If each party does not establish its liability, the act requires a court to apportion those costs or expenditures, as specified, among the defendants and the remaining portion of the judgment is required to be paid from the Toxic Substances Control Account. Existing law authorizes the money deposited in the Toxic Substances Control Account in the General Fund to be appropriated to the Department of Toxic Substances Control for specified purposes, including the payment of the costs incurred by the state for those actions.

This bill would specifically apply those provisions to response and corrective actions, instead of to removal and remedial actions, and would delete the requirement that the remaining portion of a judgment for costs and expenditures that is not apportioned among the liable persons be paid from that account.

(2)The act requires an action brought pursuant to it for the recovery of the costs of a removal or remedial action, or for the recovery of specified administrative costs, to be commenced within 3 years after completion of the removal or remedial action has been certified by the department.

This bill would, except as provided, instead allow an action for the recovery of the costs of carrying out or overseeing a response or corrective action to be commenced either within that 3-year period or, if operation and maintenance is required as part of the response or corrective action, within three 3 years after completion of operation and maintenance has been certified by the department or a regional board.

(1)Existing law, the Carpenter-Presley-Tanner Hazardous Substance Account Act, imposes liability for hazardous substances removal or remedial actions and requires the Attorney General to recover from the liable person, as defined, certain costs incurred by the Department of Toxic Substances Control or a California regional water quality control board, upon the request of the department or regional board. The act authorizes, except as specified, a party found liable for any costs or expenditures recoverable under the act for those actions to establish, as specified, that only a portion of those costs or expenditures are attributable to the party, and requires the party to pay only for that portion. If each party does not establish its liability, the act requires a court to apportion those costs or expenditures, as specified, among the defendants and the remaining portion of the judgment is required to be paid from the Toxic Substances Control Account. Existing law authorizes the money deposited in the Toxic Substances Control Account in the General Fund to be appropriated to the Department of Toxic Substances Control for specified purposes, including the payment of the costs incurred by the state for those actions.

This bill would specifically apply those provisions to response and corrective actions, instead of to removal and remedial actions, and would delete the requirement that the remaining portion of a judgment for costs and expenditures that is not apportioned among the liable persons be paid from that account.

(2)The act requires an action brought pursuant to it for the recovery of the costs of a removal or remedial action action, or for the recovery of specified administrative costs, to be commenced within 3 years after completion of the removal or remedial action has been certified by the department.

This bill would, except as provided, instead allow an action for the recovery of the costs of carrying out or overseeing a response or corrective action to be commenced either within that 3-year period or, if operation and maintenance is required as part of the response or corrective action, within three years after completion of operation and maintenance has been certified by the department or a regional board.

(1)Existing law, the Carpenter-Presley-Tanner Hazardous Substance Account Act, imposes liability for hazardous substances removal or remedial actions and requires the Attorney General to recover from the liable person, as defined, certain costs incurred by the Department of Toxic Substances Control or a California regional water quality control board, upon the request of the department or regional board. The act authorizes, except as specified, a party found liable for any costs or expenditures recoverable under the act for those actions to establish, as specified, that only a portion of those costs or expenditures are attributable to the party, and be required requires the party to pay only for that portion. If each party does not establish its its liability, the act requires the a court to apportion those costs or expenditures, as specified, among the defendants and the remaining portion of the judgment is required to be paid from the Toxic Substances Control Account. Existing law authorizes the money deposited in the Toxic Substances Control Account in the General Fund to be appropriated to the Department of Toxic Substances Control for specified purposes, including the payment of removal and remedial actions the costs incurred by the state. state for those actions.

This bill would specifically apply those provisions to response and corrective actions, and would delete the requirement that the remaining portion of a judgment for costs and expenditures that is not apportioned among the liable persons be paid from that account.

(2)The act requires an action brought pursuant to it for the recovery of the costs of a removal or remedial action to be commenced within 3 years after completion of the removal or remedial action has been certified by the department.

This bill would, except as provided, instead allow an a response or corrective action to be commenced either within that 3-year period or within 6 years of the initiation of a removal or remedial action, whichever date is later. or, if operation and maintenance is required as part of the response or corrective action, within three years after completion of operation and maintenance has been certified by the department or a regional board.

(1)Existing law, the Carpenter-Presley-Tanner Hazardous Substance Account Act, imposes liability for hazardous substances removal or remedial actions and requires the Attorney General to recover from the liable person, as defined, certain costs incurred by the Department of Toxic Substances Control or a California regional water quality control board, upon the request of the department or regional board. The act authorizes, except as specified, a party found liable for any costs or expenditures recoverable under the act to establish, as specified, that only a portion of those costs or expenditures are attributable to the party, and be required to pay only for that portion. If each party does not establish its liability, the act requires the court to apportion those costs or expenditures, as specified, among the defendants and the remaining portion of the judgment is required to be paid from the Toxic Substances Control Account. Existing law authorizes the money deposited in the Toxic Substances Control Account in the General Fund to be appropriated to the Department of Toxic Substances Control for specified purposes, including the payment of removal and remedial actions incurred by the state.

This bill would delete the requirement that the remaining portion of a judgment for costs and expenditures that is not apportioned among the liable persons be paid from that account.

(2)The act requires an action brought pursuant to it for the recovery of the costs of a removal or remedial action to be commenced within 3 years after completion of the removal or remedial action has been certified by the department.

This bill would, except as provided, instead allow an action to be commenced either within that 3-year period or within 6 years of the initiation of a removal or remedial action, whichever date is later.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 275

Author:(Committee on Environmental Safety and Toxic Materials)

As Amended Ver:August 19, 2015

Majority vote

Original Committee Reference: E.S. & T.M.

SUMMARY: Revises the California Department of Toxic Substances Control's (DTSC) statute of limitations on cost recovery. Specifically, this bill:

1. Revises the state's statute of limitations on the recovery of costs incurred by DTSC related to overseeing or carrying out a response or corrective action to commence within three years after completion of all response or corrective actions have been certified by DTSC or a regional water quality control board (regional board).

2. Requires action for cost recovery for operation and maintenance (O&M) costs to commence within three years after completion of O&M has been certified by DTSC or a regional board.

3. States that the statutes of limitation in this section do not apply to a cost recovery action brought by a regional board under the Water Code.

4. Deletes the requirement that the Toxic Substances Control Account (TSCA) shall pay any portion of the judgment in excess of the aggregate amount of costs or expenditures apportioned to responsible parties.

5. Deletes reference to Health and Safety Code (H&S) Section 25356.6, which was repealed by SB 1019 (Budget and Fiscal Review Committee), Chapter 30, Statutes of 2012.

The Senate amendments:

1. Revise the timeframe for the recovery of costs incurred by DTSC related to overseeing or carrying out a response or corrective action from six years of the initiation of a removal or remedial action to within three years after completion of all response or corrective actions have been certified by DTSC or a regional board.

2. Authorize DTSC to pursue cost recovery for O&M costs associated with response or corrective actions and require cost recovery to be commenced within three years after DTSC has certified the O&M.

3. State that the statutes of limitation in Section 25360.4 do not apply to a cost recovery action brought by a regional board under the Water Code.

4. Make technical changes to remove unnecessary terms, and conform terminology used in H&S Chapters 6.5 and 6.8.

EXISTING LAW:

1. Requires DTSC to commence recovery of the costs of removal or remedial action or related administrative costs within three years after completion of the removal or remedial action has been certified by the department. (H&S Section 25360.4)

2. Requires any party found liable for any costs or expenditures recoverable, 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 that portion. (H&S Section 25363)

3. Pursuant to the Carpenter-Presley-Tanner Hazardous Substance Account Act, makes available adequate funds in order to permit the State of California to assure payment of its 10% share of the costs mandated under federal Superfund requirements, Section 104(c)(3) of the federal act (42 United States Code (U.S.C.) Section 9604(c)(3)). (H&S Section 25301)

4. Establishes the TSCA (H&S Section 25173.6), allows the DTSC director to expend federal funds in the TSCA consistent with the requirements specified in Section 114 of the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 (42 U.S.C. Section 9614) (H&S Section 25173.6(d)), and defines the Toxic Substances Control Account as the "State Account." (H&S Section 25324)

5. Establishes the Site Remediation Account (SRA), to be funded by money transferred from the TSCA, and may be expended by DTSC for direct site remediation costs consistent with the requirements of Section 114(c) of the federal act (42 U.S.C. Section 9614(c)). (H&S Section 25337)

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS:

State Audit Report: On August 7, 2014, the Bureau of State Audits (BSA) released a report on DTSC's cost recovery. The BSA found that long-standing shortcomings with DTSC's recovery of costs have resulted in millions of dollars in unbilled and billed but uncollected cleanup costs dating back to 1987.

DTSC may not be able to recover all of its outstanding costs due to several factors, including when the federal and state statutes of limitations for cost recovery have expired on projects. DTSC's preliminary determinations indicated that the statute of limitations had expired for 76 projects with a total of $13.4 million in outstanding costs, which DTSC may not recover.

According to the BSA, "under federal law, an initial action to recover costs from responsible parties must commence within three years of completing removal activities, or within six years of beginning the implementation of remedial activities. Similarly, state law requires the initiation of a cost recovery action within three years of [DTSC] certifying the completion of a cleanup activity. According to a [DTSC] attorney, for the purposes of recovering costs, [DTSC] can file an action against a responsible party under federal law, state law, or upon a provision in a contract. Therefore, she explained, if the statute of limitations has expired for one, [DTSC] may still pursue cost recovery under the other two if they have not expired."

Orphan funding: According to DTSC, "Both US [United States] EPA [Environmental Protection Agency] and DTSC have identified sites which represent an immediate threat to public health and environment and/or for which no viable responsible parties have been identified to address these projects. US EPA's list is referred to as the Federal Superfund List and the DTSC's list is referred to as the State Orphan's list.

"Annually, DTSC's budget contains a line item that covers cleanup activities for both Federal Superfund match and State Orphan sites. For FY [Fiscal Year] 12/13 roughly $9.2 million was allocated. Each year the amount increases slightly. Federal regulations require that the State must provide a 10% match for the construction of final remedy and initial operation and maintenance costs. After a specific time period, then the State must assumed 100% of the costs to operate that system. This same funding allocation covers the State Orphan sites as well.

"It is anticipated that within the next 2-3 years, the amount of money needed to cover our Federal Superfund match obligations and State's orphan funding needs will be more than what is currently appropriated annually."

Need for this bill: Under state law, the state's TSCA is required to pay any portion of the judgment in excess of the amount of the apportioned costs to responsible parties. That means DTSC's general fund, which is used for cleanup, is then used to partially cover costs that the responsible party(ies), under federal law, is compelled to pay. When cost recovery is pursued in state court, it puts the burden on TSCA to help fund the judgment, which puts taxpayers on the hook to partially fund the cleanup and creates an unnecessary cost burden on the state's already underfunded accounts for toxic waste site cleanup.

The requirement that taxpayer dollars support cleanup costs is inconsistent with federal law. Under CERCLA, there is no federal taxpayer funding required or available to support the judgment. Therefore, DTSC currently pursues many, perhaps most of its cost recovery cases through federal court under CERCLA.

Though DTSC tends to pursue cost recovery under CERCLA more often, the state's statute of limitations would be more desirable to use to pursue cost recovery if the state's responsibility to pay were eliminated.

With these changes to the state's statute of limitations, DTSC will be more apt to pursue cases through state court under state law. While many cases will likely continue to be pursued under CERCLA, having more flexibility to seek cost recovery through state court will allow the department to pursue more cases more expeditiously and have a greater success rate recovering its costs before statutes of limitations expire.

Analysis Prepared by: Paige Brokaw / E.S. & T.M. / (916) 319-3965 FN: 0001484

 THIRD READING  

Bill No: AB 275

Author: Committee on Environmental Safety and Toxic Materials

Amended: 8/19/15 in Senate

Vote: 21

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 6-1, 6/17/15

AYES: Wieckowski, Bates, Hill, Jackson, Leno, Pavley

NOES: Gaines

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 63-5, 4/20/15 - See last page for vote

SUBJECT: Hazardous substances: liability recovery actions

SOURCE: Author

DIGEST: This bill revises the Department of Toxic Substances Control’s (DTSC) statute of limitations on cost recovery.

Senate Floor Amendments of 8/19/15 clarify the intent of the legislation and make technical and grammatical corrections.

ANALYSIS:

Existing law:

1. Imposes, under the Carpenter-Presley-Tanner Hazardous Substance Account Act (Act), liability for hazardous substances removal or remedial actions and requires the Attorney General to recover from the liable person, as defined, certain costs incurred by the DTSC or a California regional water quality control board (regional board), upon the request of the DTSC or regional board.

2. Authorizes, except as specified, a party found liable for any costs or expenditures recoverable under the Act for those actions to establish, as specified, that only a portion of those costs or expenditures are attributable to the party, and requires the party to pay only for that portion. If each party does not establish its liability, the Act requires a court to apportion those costs or expenditures, as specified, among the defendants and the remaining portion of the judgment is required to be paid from the Toxic Substances Control Account (TSCA).

3. Authorizes the money deposited in the TSCA in the General Fund to be appropriated to the DTSC for specified purposes, including the payment of the costs incurred by the state for those actions.

This bill:

1. Revises the state’s statute of limitations on the recovery of the costs of removal or remedial actions to allow the DTSC to recover costs within three years after the completion of all removal or remedial action has been certified by the DTSC.

2. Requires that if operation and maintenance is required as part of the corrective action, the cost recovery action shall be commenced by the DTSC or regional water quality control board within three years of certification of operation and maintenance.

3. Deletes the requirement that the TSCA shall pay any portion of the judgment in excess of the aggregate amount of costs or expenditures apportioned to responsible parties.

4. Deletes reference to Health and Safety Code Section 25356.6, which was repealed by SB 1018 (Budget and Fiscal Review Committee, Chapter 39, Statutes of 2012).

Background

1. State Audit report. On August 7, 2014, the Bureau of State Audits (BSA) released a report on DTSC’s cost recovery. The BSA found that long-standing shortcomings with DTSC’s recovery of costs have resulted in millions of dollars in unbilled and billed but uncollected cleanup costs dating back to 1987.

The DTSC may not be able to recover all of its outstanding costs due to several factors, including when the federal and state statutes of limitations for cost recovery have expired on projects. The DTSC’s preliminary determinations indicated that the statute of limitations had expired for 76 projects with a total of $13.4 million in outstanding costs, which the DTSC may not recover.

According to the BSA, “under federal law, an initial action to recover costs from responsible parties must commence within three years of completing removal activities, or within six years of beginning the implementation of remedial activities. Similarly, state law requires the initiation of a cost recovery action within three years of [DTSC] certifying the completion of a cleanup activity. According to a [DTSC] attorney, for the purposes of recovering costs, [DTSC] can file an action against a responsible party under federal law, state law, or upon a provision in a contract. Therefore, she explained, if the statute of limitations has expired for one, [DTSC] may still pursue cost recovery under the other two if they have not expired.”

2. Orphan funding. According to the DTSC, “Both US EPA [United States Environmental Protection Agency] and DTSC have identified sites which represent an immediate threat to public health and environment and/or for which no viable responsible parties have been identified to address these projects. US EPA’s list is referred to as the Federal Superfund List and the DTSC’s list is referred to as the State Orphan’s list.

“Annually, DTSC’s budget contains a line item that covers cleanup activities for both Federal Superfund match and State Orphan sites. For FY 12/13 roughly $9.2 million was allocated. Each year the amount increases slightly. Federal regulations require that the State must provide a 10% match for the construction of final remedy and initial operation and maintenance costs. After a specific time period, then the State must assumed 100% of the costs to operate that system. This same funding allocation covers the State Orphan sites as well.

“It is anticipated that within the next 2-3 years, the amount of money needed to cover our Federal Superfund match obligations and State’s orphan funding needs will be more than what is currently appropriated annually.”

Comments

Purpose of bill. According to the author, “Under state law, the state’s TSCA is required to pay any portion of the judgment in excess of the amount of the apportioned costs to responsible parties. That means DTSC’s general fund, which is used for cleanup, is then used to partially cover costs that responsible party(ies), under federal law, are compelled to pay. When cost recovery is pursued in state court, it puts the burden on TSCA to help fund the judgment, which puts taxpayers on the hook to partially fund the cleanup and creates an unnecessary cost burden on the state’s already underfunded accounts for toxic waste site cleanup.”

The author states that “the requirement that taxpayer dollars support cleanup costs is inconsistent with federal law. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), there is no federal taxpayer funding required or available to support the judgment. Therefore, DTSC currently pursues many, perhaps most of its cost recovery cases through federal court under CERCLA. Though DTSC tends to pursue cost recovery under CERCLA more often, the state’s statute of limitations would be more desirable to use to pursue cost recovery if the state’s responsibility to pay were eliminated.”

The author further states that “with these changes to the state’s statute of limitations, DTSC will be more apt to pursue cases through state court under state law. While many cases will likely continue to be pursued under CERCLA, having more flexibility to seek cost recovery through state court will allow the department to pursue more cases more expeditiously and have a greater success rate recovering its costs before statutes of limitations expire.”

Related Legislation

In addition to this bill, the Assembly Committee on Environmental Safety and Toxic Materials (ESTM) has introduced the following bills to address the shortcomings found in the BSA report:

1. AB 273 (ESTM, 2015) modifies provisions relating to DTSC’s authority to require corrective actions under hazardous waste control laws.

2. AB 274 (ESTM, 2015) allows DTSC to not expend resources to pursue an uncollectible account, as defined.

3. AB 276 (ESTM, 2015) allows DTSC to request financial information from specified entities who claim inability to pay.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/20/15)

California League of Conservation Voters

Environment California

Environmental Working Group

Natural Resources Defense Council

OPPOSITION: (Verified 8/20/15)

None received

ASSEMBLY FLOOR: 63-5, 4/20/15

AYES: Alejo, Travis Allen, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Beth Gaines, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Lackey, Levine, Lopez, Low, Maienschein, Mathis, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber, Wilk, Williams, Wood, Atkins

NOES: Baker, Brough, Chávez, Harper, Wagner

NO VOTE RECORDED: Achadjian, Bigelow, Chang, Dahle, Gallagher, Grove, Kim, Linder, Mayes, Melendez, Patterson, Steinorth

Prepared by: Rachel Machi Wagoner / E.Q. / (916) 651-4108

8/21/15 11:38:39

**** END ****

 THIRD READING  

Bill No: AB 275

Author: Committee on Environmental Safety and Toxic Materials

Amended: 7/13/15 in Senate

Vote: 21

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 6-1, 6/17/15

AYES: Wieckowski, Bates, Hill, Jackson, Leno, Pavley

NOES: Gaines

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 63-5, 4/20/15 - See last page for vote

SUBJECT: Hazardous substances: liability recovery actions

SOURCE: Author

DIGEST: This bill revises the Department of Toxic Substances Control’s (DTSC) statute of limitations on cost recovery.

ANALYSIS:

Existing law:

1. Imposes, under the Carpenter-Presley-Tanner Hazardous Substance Account Act (Act), liability for hazardous substances removal or remedial actions and requires the Attorney General to recover from the liable person, as defined, certain costs incurred by the DTSC or a California regional water quality control board (regional board), upon the request of the DTSC or regional board.

2. Authorizes, except as specified, a party found liable for any costs or expenditures recoverable under the Act for those actions to establish, as specified, that only a portion of those costs or expenditures are attributable to the party, and requires the party to pay only for that portion. If each party does not establish its liability, the Act requires a court to apportion those costs or expenditures, as specified, among the defendants and the remaining portion of the judgment is required to be paid from the Toxic Substances Control Account (TSCA).

3. Authorizes the money deposited in the TSCA in the General Fund to be appropriated to the DTSC for specified purposes, including the payment of the costs incurred by the state for those actions.

This bill:

1. Revises the state’s statute of limitations on the recovery of the costs of removal or remedial actions to allow DTSC to recover costs within three years after the completion of all removal or remedial action has been certified by DTSC.

2. Requires that if operation and maintenance is required as part of the corrective action, the cost recovery action shall be commenced by DTSC or regional water quality control board within three years of certification of operation and maintenance.

3. Deletes the requirement that the TSCA shall pay any portion of the judgment in excess of the aggregate amount of costs or expenditures apportioned to responsible parties.

4. Deletes reference to Health and Safety Code Section 25356.6, which was repealed by SB 1018 (Budget and Fiscal Review Committee, Chapter 39, Statutes of 2012).

Background

1. State Audit report. On August 7, 2014, the Bureau of State Audits (BSA) released a report on DTSC’s cost recovery. The BSA found that long-standing shortcomings with DTSC’s recovery of costs have resulted in millions of dollars in unbilled and billed but uncollected cleanup costs dating back to 1987.

DTSC may not be able to recover all of its outstanding costs due to several factors, including when the federal and state statutes of limitations for cost recovery have expired on projects. DTSC’s preliminary determinations indicated that the statute of limitations had expired for 76 projects with a total of $13.4 million in outstanding costs, which DTSC may not recover.

According to the BSA, “under federal law, an initial action to recover costs from responsible parties must commence within three years of completing removal activities, or within six years of beginning the implementation of remedial activities. Similarly, state law requires the initiation of a cost recovery action within three years of [DTSC] certifying the completion of a cleanup activity. According to a [DTSC] attorney, for the purposes of recovering costs, [DTSC] can file an action against a responsible party under federal law, state law, or upon a provision in a contract. Therefore, she explained, if the statute of limitations has expired for one, [DTSC] may still pursue cost recovery under the other two if they have not expired.”

2. Orphan funding. According to DTSC, “Both US EPA [United States Environmental Protection Agency] and DTSC have identified sites which represent an immediate threat to public health and environment and/or for which no viable responsible parties have been identified to address these projects. US EPA’s list is referred to as the Federal Superfund List and the DTSC’s list is referred to as the State Orphan’s list.

“Annually, DTSC’s budget contains a line item that covers cleanup activities for both Federal Superfund match and State Orphan sites. For FY 12/13 roughly $9.2 million was allocated. Each year the amount increases slightly. Federal regulations require that the State must provide a 10% match for the construction of final remedy and initial operation and maintenance costs. After a specific time period, then the State must assumed 100% of the costs to operate that system. This same funding allocation covers the State Orphan sites as well.

“It is anticipated that within the next 2-3 years, the amount of money needed to cover our Federal Superfund match obligations and State’s orphan funding needs will be more than what is currently appropriated annually.”

Comments

Purpose of bill. According to the author, “Under state law, the state’s TSCA is required to pay any portion of the judgment in excess of the amount of the apportioned costs to responsible parties. That means DTSC’s general fund, which is used for cleanup, is then used to partially cover costs that responsible party(ies), under federal law, are compelled to pay. When cost recovery is pursued in state court, it puts the burden on TSCA to help fund the judgment, which puts taxpayers on the hook to partially fund the cleanup and creates an unnecessary cost burden on the state’s already underfunded accounts for toxic waste site cleanup.”

The author states that “the requirement that taxpayer dollars support cleanup costs is inconsistent with federal law. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), there is no federal taxpayer funding required or available to support the judgment. Therefore, DTSC currently pursues many, perhaps most of its cost recovery cases through federal court under CERCLA. Though DTSC tends to pursue cost recovery under CERCLA more often, the state’s statute of limitations would be more desirable to use to pursue cost recovery if the state’s responsibility to pay were eliminated.”

The author further states that “with these changes to the state’s statute of limitations, DTSC will be more apt to pursue cases through state court under state law. While many cases will likely continue to be pursued under CERCLA, having more flexibility to seek cost recovery through state court will allow the department to pursue more cases more expeditiously and have a greater success rate recovering its costs before statutes of limitations expire.”

Related Legislation

In addition to this bill, the Assembly Committee on Environmental Safety and Toxic Materials (ESTM) has introduced the following bills to address the shortcomings found in the BSA report:

1. AB 273 (ESTM, 2015) modifies provisions relating to DTSC’s authority to require corrective actions under hazardous waste control laws.

2. AB 274 (ESTM, 2015) allows DTSC to not expend resources to pursue an uncollectible account, as defined.

3. AB 276 (ESTM, 2015) allows DTSC to request financial information from specified entities who claim inability to pay.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 7/10/15)

California League of Conservation Voters

Environment California

Environmental Working Group

Natural Resources Defense Council

OPPOSITION: (Verified 7/10/15)

None received

ASSEMBLY FLOOR: 63-5, 4/20/15

AYES: Alejo, Travis Allen, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Beth Gaines, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Lackey, Levine, Lopez, Low, Maienschein, Mathis, McCarty, Medina, Mullin, Nazarian, Obernolte, O’Donnell, Olsen, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber, Wilk, Williams, Wood, Atkins

NOES: Baker, Brough, Chávez, Harper, Wagner

NO VOTE RECORDED: Achadjian, Bigelow, Chang, Dahle, Gallagher, Grove, Kim, Linder, Mayes, Melendez, Patterson, Steinorth

Prepared by: Rachel Machi Wagoner / E.Q. / (916) 651-4108

7/15/15 17:42:31

**** END ****

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2015 - 2016 Regular

Bill No: AB 275

SUBJECT: Hazardous substances: liability recovery actions

ANALYSIS:

Existing law:

1. Under the Carpenter-Presley-Tanner Hazardous Substance Account Act, imposes liability for hazardous substances removal or remedial actions and requires the Attorney General to recover from the liable person, as defined, certain costs incurred by the Department of Toxic Substances Control (DTSC) or a California regional water quality control board (regional board), upon the request of DTSC or regional board.

2. Authorizes, except as specified, a party found liable for any costs or expenditures recoverable under the act for those actions to establish, as specified, that only a portion of those costs or expenditures are attributable to the party, and requires the party to pay only for that portion. If each party does not establish its liability, the act requires a court to apportion those costs or expenditures, as specified, among the defendants and the remaining portion of the judgment is required to be paid from the Toxic Substances Control Account (TSCA).

3. Authorizes the money deposited in the TSCA in the General Fund to be appropriated to the DTSC for specified purposes, including the payment of the costs incurred by the state for those actions.

This bill:

Revises the DTSC’s statute of limitations on cost recovery. Specifically:

1. Revises the state's statute of limitations on the recovery of the costs of removal or remedial actions to allow DTSC to recover costs within three years after the completion of a removal or remedial action has been certified by DTSC;

2. Requires that if operation and maintenance is required as part of the corrective action, the cost recovery action shall be commenced by the department within three years of certification of operation and maintenance.

3. Deletes the requirement that the TSCA shall pay any portion of the judgment in excess of the aggregate amount of costs or expenditures apportioned to responsible parties; and

4. Deletes reference to Health & Safety Code §25356.6, which was repealed by SB 1018 (Budget and Fiscal Review Committee, Chapter 39, Statutes of 2012).

Background

1. State Audit Report: On August 7, 2014, the Bureau of State Audits (BSA) released a report on DTSC's cost recovery. The BSA found that long-standing shortcomings with DTSC's recovery of costs have resulted in millions of dollars in unbilled and billed but uncollected cleanup costs dating back to 1987.

DTSC may not be able to recover all of its outstanding costs due to several factors, including when the federal and state statutes of limitations for cost recovery have expired on projects. DTSC's preliminary determinations indicated that the statute of limitations had expired for 76 projects with a total of $13.4 million in outstanding costs, which DTSC may not recover.

According to the BSA, "under federal law, an initial action to recover costs from responsible parties must commence within three years of completing removal activities, or within six years of beginning the implementation of remedial activities. Similarly, state law requires the initiation of a cost recovery action within three years of [DTSC] certifying the completion of a cleanup activity. According to a [DTSC] attorney, for the purposes of recovering costs, [DTSC] can file an action against a responsible party under federal law, state law, or upon a provision in a contract. Therefore, she explained, if the statute of limitations has expired for one, [DTSC] may still pursue cost recovery under the other two if they have not expired."

2. Orphan funding: According to DTSC, "Both US EPA and DTSC have identified sites which represent an immediate threat to public health and environment and/or for which no viable responsible parties have been identified to address these projects. US EPA’s list is referred to as the Federal Superfund List and the DTSC’s list is referred to as the State Orphan’s list.

"Annually, DTSC’s budget contains a line item that covers cleanup activities for both Federal Superfund match and State Orphan sites. For FY 12/13 roughly $9.2 million was allocated. Each year the amount increases slightly. Federal regulations require that the State must provide a 10% match for the construction of final remedy and initial operation and maintenance costs. After a specific time period, then the State must assumed 100% of the costs to operate that system. This same funding allocation covers the State Orphan sites as well.

"It is anticipated that within the next 2-3 years, the amount of money needed to cover our Federal Superfund match obligations and State’s orphan funding needs will be more than what is currently appropriated annually."

Comments

Purpose of Bill. According to the author, “Under state law, the state's TSCA is required to pay any portion of the judgment in excess of the amount of the apportioned costs to responsible parties. That means DTSC's general fund, which is used for cleanup, is then used to partially cover costs that responsible party(ies), under federal law, are compelled to pay. When cost recovery is pursued in state court, it puts the burden on TSCA to help fund the judgment, which puts taxpayers on the hook to partially fund the cleanup and creates an unnecessary cost burden on the state's already underfunded accounts for toxic waste site cleanup.”

The author states that “the requirement that taxpayer dollars support cleanup costs is inconsistent with federal law. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), there is no federal taxpayer funding required or available to support the judgment. Therefore, DTSC currently pursues many, perhaps most of its cost recovery cases through federal court under CERCLA. Though DTSC tends to pursue cost recovery under CERCLA more often, the state's statute of limitations would be more desirable to use to pursue cost recovery if the state's responsibility to pay were eliminated.”

The author further states that with these changes to the state's statute of limitations, DTSC will be more apt to pursue cases through state court under state law. While many cases will likely continue to be pursued under CERCLA, having more flexibility to seek cost recovery through state court will allow the department to pursue more cases more expeditiously and have a greater success rate recovering its costs before statutes of limitations expire.”

Related/Prior Legislation

In addition to this bill, the Committee on Environmental Safety and Toxic Materials has introduced the following bills to address the shortcomings found in the BSA report:

1. AB 273 (ESTM) modifies provisions relating to DTSC's authority to require corrective actions under hazardous waste control laws.

2. AB 274 (ESTM) allows DTSC to not expend resources to pursue an uncollectible account, as defined.

3. AB 276 (ESTM) allows DTSC to request financial information from specified entities who claim inability to pay.

SOURCE:

Committee on Environmental Safety and Toxic Materials

SUPPORT:

California League of Conservation Voters

Environment California

Environmental Working Group

Natural Resources Defense Council

OPPOSITION:

None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 275

Author:(Committee on Environmental Safety and Toxic Materials)

As Introduced Ver:February 11, 2015

Majority vote

SUMMARY:

Revises the California Department of Toxic Substances Control's (DTSC) statute of limitations on cost recovery. Specifically, this bill:

1. Revises the state's statute of limitations on the recovery of the costs of removal or remedial actions to allow DTSC to recover costs within three years after the completion of a removal or remedial action has been certified by DTSC or within six years of the initiation of a removal or remedial process action, whichever date is later;

2. Deletes the requirement that the Toxic Substances Control Account (TSCA) shall pay any portion of the judgment in excess of the aggregate amount of costs or expenditures apportioned to responsible parties; and

3. Deletes reference to Health & Safety Code (H&S) Section 25356.6, which was repealed by SB 1018 (Budget and Fiscal Review Committee), Chapter 39, Statutes of 2012.

FISCAL EFFECT:

According to the Assembly Appropriations Committee, there are potentially unknown increased revenues from cost recovery resulting from the extended statute of limitations, and potential unknown savings resulting from no longer requiring DTSC to pay any portion of the judgment.

COMMENTS:

State Audit Report: On August 7, 2014, the Bureau of State Audits (BSA) released a report on DTSC's cost recovery. The BSA found that long-standing shortcomings with DTSC's recovery of costs have resulted in millions of dollars in unbilled and billed but uncollected cleanup costs dating back to 1987.

DTSC may not be able to recover all of its outstanding costs due to several factors, including when the federal and state statutes of limitations for cost recovery have expired on projects. DTSC's preliminary determinations indicated that the statute of limitations had expired for 76 projects with a total of $13.4 million in outstanding costs, which DTSC may not recover.

According to the BSA, "under federal law, an initial action to recover costs from responsible parties must commence within three years of completing removal activities, or within six years of beginning the implementation of remedial activities. Similarly, state law requires the initiation of a cost recovery action within three years of [DTSC] certifying the completion of a cleanup activity. According to a [DTSC] attorney, for the purposes of recovering costs, [DTSC] can file an action against a responsible party under federal law, state law, or upon a provision in a contract. Therefore, she explained, if the statute of limitations has expired for one, [DTSC] may still pursue cost recovery under the other two if they have not expired."

Orphan funding: According to DTSC, "Both US EPA and DTSC have identified sites which represent an immediate threat to public health and environment and/or for which no viable responsible parties have been identified to address these projects. US EPA’s list is referred to as the Federal Superfund List and the DTSC’s list is referred to as the State Orphan’s list.

"Annually, DTSC’s budget contains a line item that covers cleanup activities for both Federal Superfund match and State Orphan sites. For FY 12/13 roughly $9.2 million was allocated. Each year the amount increases slightly. Federal regulations require that the State must provide a 10% match for the construction of final remedy and initial operation and maintenance costs. After a specific time period, then the State must assumed 100% of the costs to operate that system. This same funding allocation covers the State Orphan sites as well.

"It is anticipated that within the next 2-3 years, the amount of money needed to cover our Federal Superfund match obligations and State’s orphan funding needs will be more than what is currently appropriated annually."

Need for the bill: Under state law, the state's TSCA is required to pay any portion of the judgment in excess of the amount of the apportioned costs to responsible parties. That means DTSC's general fund, which is used for cleanup, is then used to partially cover costs that responsible party(ies), under federal law, are compelled to pay. When cost recovery is pursued in state court, it puts the burden on TSCA to help fund the judgment, which puts taxpayers on the hook to partially fund the cleanup and creates an unnecessary cost burden on the state's already underfunded accounts for toxic waste site cleanup.

The requirement that taxpayer dollars support cleanup costs is inconsistent with federal law. Under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), there is no federal taxpayer funding required or available to support the judgment. Therefore, DTSC currently pursues many, perhaps most of its cost recovery cases through federal court under CERCLA.

Though DTSC tends to pursue cost recovery under CERCLA more often, the state's statute of limitations would be more desirable to use to pursue cost recovery if the state's responsibility to pay were eliminated.

With these changes to the state's statute of limitations, DTSC will be more apt to pursue cases through state court under state law. While many cases will likely continue to be pursued under CERCLA, having more flexibility to seek cost recovery through state court will allow the department to pursue more cases more expeditiously and have a greater success rate recovering its costs before statutes of limitations expire.

Analysis Prepared by: Paige Brokaw / E.S. & T.M. / (916) 319-3965 FN: 0000158

Date of Hearing: April 15, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 275

Author:(Committee on Environmental Safety) – As Introduced Ver:February 11, 2015

Urgency: No State Mandated Local Program: No Reimbursable:

SUMMARY:

This bill adds to the Department of Toxic Substance Control's (DTSC) existing statute of limitation on cost recovery of three years after a certified completion of removal or remedial action to also include a time period of within six years of the initiation of the removal or remediation process, whichever date is later.

This bill also deletes the requirement for DTSC to pay any portion of the judgment in excess of the costs or expenditures apportioned to the responsible parties.

FISCAL EFFECT:

1. Potential unknown increased revenues from cost recovery resulting from the extended statute of limitations (Toxic Substance Control Account).

2. Potential unknown savings resulting from no longer requiring DTSC to pay any portion of the judgment.

COMMENTS:

1. Purpose. According to the author, DTSC may not be able to recover all of its outstanding costs due to several factors including when state and federal statutes of limitations expire. According to DTSC, the statute of limitations has expired for 76 projects totaling $13.4 million in unrecoverable outstanding costs. This bill extends the statute of limitations consistent with federal law.

2. Background. On August 7, 2014, the Bureau of State Audits (BSA) released a report on DTSC's cost recovery. The BSA found long-standing shortcomings resulting in millions of dollars in unbilled and uncollected cleanup costs dating back to 1987.

According to the BSA, under federal law, an initial action to recover costs from responsible parties must commence within three years of completing removal activities, or within six years of beginning the implementation of remedial activities. Similarly, state law requires the initiation of a cost recovery action within three years of certifying the completion of a cleanup activity. For the purposes of recovering costs, DTSC can file an action against a responsible party under federal law, state law, or upon a provision in a contract. Therefore, if the statute of limitations has expired for one, DTSC may still pursue cost recovery under the other two if they have not also expired.

Under existing law, DTSC is required to pay any portion of the judgment in excess of the amount apportioned to responsible parties from its Toxic Substance Control Account (TSCA).

Under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), there is no federal taxpayer funding required or available to support the judgment. Therefore, DTSC currently pursues many, perhaps most of its cost recovery cases through federal court under CERCLA.

Under this bill, DTSC will be more likely to pursue cases through state court under state law. While many cases will likely continue to be pursued under CERCLA, having more flexibility to seek cost recovery through state court will allow the department to pursue more cases more expeditiously and have a greater success rate recovering its costs before statutes of limitations expire.

3. Related Legislation. In addition to this bill, the Committee on Environmental Safety and Toxic Materials has introduced the following bills to address the shortcomings found in the BSA report:

1. AB 273 (ESTM) modifies provisions relating to DTSC's authority to require corrective actions under hazardous waste control laws.

2. AB 274 (ESTM) allows DTSC to not expend resources to pursue an uncollectible account, as defined.

3. AB 276 (ESTM) allows DTSC to request financial information from specified entities who claim inability to pay.

All four bills will be heard in this Committee on April 15, 2015

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: March 24, 2015

ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS

Alejo, Chair

ABPCA Bill Id:AB 275

Author:(Committee on Environmental Safety and Toxic Materials) – As Introduced Ver:February 11, 2015

SUBJECT:

Hazardous substances: liability recovery actions.

SUMMARY:

Revises the California Department of Toxic Substances Control's (DTSC) statute of limitations on cost recovery. Specifically, this bill:

1. Revises the state's statute of limitations on the recovery of the costs of removal or remedial actions to allow DTSC to recover costs within three years after the completion of a removal or remedial action has been certified by DTSC or within six years of the initiation of a removal or remedial process action, whichever date is later;

2. Deletes the requirement that the Toxic Substances Control Account (TSCA) shall pay any portion of the judgment in excess of the aggregate amount of costs or expenditures apportioned to responsible parties; and

3. Deletes reference to Health & Safety Code (H&S) § 25356.6, which was repealed by Chapter 39 of Statutes of 2012 (Senate Bill 1018).

EXISTING LAW:

1. Establishes DTSC to protect California against threats to public health and degradation to the environment and to restore properties degraded by past environmental contamination, and requires DTSC to regulate management of hazardous wastes, clean up existing contamination, and prevent pollution by working with businesses to reduce their hazardous waste and use of toxic materials. (H&S § 25360.1, et seq.)

2. Requires DTSC to commence recovery of the costs of removal or remedial action or related administrative costs within three years after completion of the removal or remedial action has been certified by the department. (H&S § 25360.4)

3. Requires any party found liable for any costs or expenditures recoverable, 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 that portion. (H&S § 25363)

4. Pursuant to the Carpenter-Presley-Tanner Hazardous Substance Account Act, makes available adequate funds in order to permit the State of California to assure payment of its

10% share of the costs mandated under federal Superfund requirements, Section 104(c)(3) of

the federal act (42 U.S.C. Sec. 9604(c)(3)). (H&S § 25301)

5. Establishes the TSCA (H&S Sec. 25173.6), allows the DTSC director to expend federal funds in the TSCA consistent with the requirements specified in Section 114 of the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 (42 U.S.C. Sec. 9614) (H&S § 25173.6(d)), and defines the Toxic Substances Control Account as the "State Account." (H&S § 25324)

6. Establishes the Site Remediation Account (SRA), to be funded by money transferred from the TSCA, and may be expended by DTSC for direct site remediation costs consistent with the requirements of Section 114(c) of the federal act (42 U.S.C. Sec. 9614(c)). (H&S § 25337)

7. Establishes CERCLA. (42 U.S.C. § 9601 et seq.)

FISCAL EFFECT:

Unknown.

COMMENTS:

State Audit Report: On August 7, 2014, the Bureau of State Audits (BSA) released a report on DTSC's cost recovery. The BSA found that long-standing shortcomings with DTSC's recovery of costs have resulted in millions of dollars in unbilled and billed but uncollected cleanup costs dating back to 1987.

DTSC may not be able to recover all of its outstanding costs due to several factors, including when the federal and state statutes of limitations for cost recovery have expired on projects. DTSC's preliminary determinations indicated that the statute of limitations had expired for 76 projects with a total of $13.4 million in outstanding costs, which DTSC may not recover.

According to the BSA, "under federal law, an initial action to recover costs from responsible parties must commence within three years of completing removal activities, or within six years of beginning the implementation of remedial activities. Similarly, state law requires the initiation of a cost recovery action within three years of [DTSC] certifying the completion of a cleanup activity. According to a [DTSC] attorney, for the purposes of recovering costs, [DTSC] can file an action against a responsible party under federal law, state law, or upon a provision in a contract. Therefore, she explained, if the statute of limitations has expired for one, [DTSC] may still pursue cost recovery under the other two if they have not expired."

Orphan funding: According to DTSC, "Both US EPA and DTSC have identified sites which represent an immediate threat to public health and environment and/or for which no viable responsible parties have been identified to address these projects. US EPA’s list is referred to as the Federal Superfund List and the DTSC’s list is referred to as the State Orphan’s list.

"Annually, DTSC’s budget contains a line item that covers cleanup activities for both Federal Superfund match and State Orphan sites. For FY 12/13 roughly $9.2 million was allocated. Each year the amount increases slightly. Federal regulations require that the State must provide a 10% match for the construction of final remedy and initial operation and maintenance costs. After a specific time period, then the State must assumed 100% of the costs to operate that system. This same funding allocation covers the State Orphan sites as well.

"It is anticipated that within the next 2-3 years, the amount of money needed to cover our Federal Superfund match obligations and State’s orphan funding needs will be more than what is currently appropriated annually."

Need for the bill: Under state law, the state's TSCA is required to pay any portion of the judgment in excess of the amount of the apportioned costs to responsible parties. That means DTSC's general fund, which is used for cleanup, is then used to partially cover costs that responsible party(ies), under federal law, are compelled to pay. When cost recovery is pursued in state court, it puts the burden on TSCA to help fund the judgment, which puts taxpayers on the hook to partially fund the cleanup and creates an unnecessary cost burden on the state's already underfunded accounts for toxic waste site cleanup.

The requirement that taxpayer dollars support cleanup costs is inconsistent with federal law. Under CERCLA, there is no federal taxpayer funding required or available to support the judgment. Therefore, DTSC currently pursues many, perhaps most of its cost recovery cases through federal court under CERCLA.

Though DTSC tends to pursue cost recovery under CERCLA more often, the state's statute of limitations would be more desirable to use to pursue cost recovery if the state's responsibility to pay were eliminated.

With these changes to the state's statute of limitations, DTSC will be more apt to pursue cases through state court under state law. While many cases will likely continue to be pursued under CERCLA, having more flexibility to seek cost recovery through state court will allow the department to pursue more cases more expeditiously and have a greater success rate recovering its costs before statutes of limitations expire.

REGISTERED SUPPORT / OPPOSITION:

Support

Natural Resources Defense Council

Opposition

None on file.

Analysis Prepared by:

Paige Brokaw / E.S. & T.M. / (916) 319-3965