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AB-2803 Public nuisance: residential lead-based paint.(2017-2018)

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Date Published: 04/23/2018 09:00 PM
AB2803:v97#DOCUMENT

Amended  IN  Assembly  April 23, 2018
Amended  IN  Assembly  March 23, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2803


Introduced by Assembly Member Limón
(Coauthors: Assembly Members Bonta, Carrillo, Chiu, McCarty, Quirk, Mark Stone, and Ting)
(Coauthor: Senator Wiener)

February 16, 2018


An act to amend Sections 25316 and 25323.5 of the Health and Safety Code, relating to hazardous materials. add Section 3497 to the Civil Code, relating to public nuisance.


LEGISLATIVE COUNSEL'S DIGEST


AB 2803, as amended, Limón. Carpenter-Presley-Tanner Hazardous Substance Account Act. Public nuisance: residential lead-based paint.
Existing law establishes an action for a public nuisance, which affects an entire community or neighborhood, or a considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. Existing law authorizes a private party or a public body to bring an action to abate a public nuisance.
This bill would provide that residential lead-based paint that affects the health of a considerable number of persons constitutes a public nuisance. Under the bill, a party may be subject to liability for public nuisance if that party promoted lead-based paint for a particular use with actual or constructive knowledge that such use would cause health hazards sufficiently serious to render that use unreasonable, as specified. The bill would provide that, in an action seeking solely abatement of residential lead-based paint, causation may be established without presenting evidence that a particular party caused a particular lead-based paint to be applied in a particular residence, as specified.
The bill would provide legislative findings and declarations in support of these provisions.

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 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 define “hazardous substance” for purposes of the act to include lead-based paint that is bioavailable. The bill would, for a residential property contaminated with lead-based paint that is bioavailable, exclude from the definition of “responsible party” or “liable person” owners and former owners of the property for purposes of the act.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YESNO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares the following:
(a) Lead is highly toxic.
(b) At high levels of exposure, lead causes seizures, comas, brain swelling, and death.
(c) At low levels of exposure, lead causes decreased IQ, difficulty with problem solving, memory impairment, attention-related disorders, and antisocial behavior.
(d) Exposure to lead causes serious health harms that are irreversible and cumulative. As the American Academy of Pediatrics explained in 2016, “[n]o treatments have been shown to be effective in ameliorating the permanent developmental effects of lead toxicity.”
(e) Young children are especially susceptible to lead exposure due to their smaller sizes, the vulnerability of their developing nervous systems, and their high rates of lead absorption.
(f) Government agencies and health organizations, including the federal Centers for Disease Control and Prevention, the World Health Organization, and the American Academy of Pediatrics, agree that there is no safe level of lead exposure.
(g) Once applied to the surface of a building or residence, lead-based paint becomes a permanent feature of that building or residence until and unless that paint has been abated.
(h) Deteriorating lead-based paint on the surfaces of a building or residence, especially high-friction surfaces like windows and doors, poses a serious health hazard to any young child who enters or lives in that building or residence.
(i) Studies indicate that lead-based paint is the source of approximately 70 percent of childhood exposure to lead.
(j) Virtually all government agencies, scientists, and public health officials agree that lead-based paint on residential surfaces is the predominant source of lead exposure in young children.
(k) Millions of residences in California were built before 1978 and are presumed to contain lead-based paint.
(l) Each year, the State of California identifies tens of thousands of young children in California whose health has been irreversibly harmed due to lead exposure. These children represent the minimum number of children in California whose health has been irreversibly harmed due to lead exposure.
(m) The economic costs of childhood lead exposure are substantial. These costs include: (1) health care costs associated with health problems caused by lead exposure, (2) special education costs incurred due to slower development, lower educational success, and behavioral problems caused by lead exposure, (3) loss of tax revenue due to decreased lifetime earnings resulting from decreased intelligence caused by lead exposure, and (4) costs of criminal activity connected to lead exposure. According to the American Academy of Pediatrics, the estimated annual cost of childhood lead exposure in the United States is $50 billion.
(n) The substantial economic costs of childhood lead exposure fall disproportionately on the state and local governments in California. Because young children who suffer from lead exposure are often poor, their health care and special education costs are typically borne by the state and local governments. Likewise, many of the economic costs of criminal behavior closely connected to lead exposure are shouldered by the state and local governments. Finally, the costs to the state and local governments in California from childhood lead exposure are exacerbated by the loss of tax revenues due to loss of income associated with childhood lead exposure.
(o) As the American Academy of Pediatrics explained in 2016, the only way to prevent the serious and irreversible health harms associated with childhood lead exposure caused by lead-based paint is to abate that paint before a young child is exposed to it.
(p) As the American Academy of Pediatrics explained in 2016, “[f]or every $1 dollar invested to reduce lead hazards in housing units, society would benefit by an estimated $17 to $221, a cost-benefit ratio that is comparable to the cost-benefit ratio for childhood vaccines.”
(q) In 2006, a California appellate court found that lead-based paint in residences may constitute a public nuisance and that lead pigment paint manufacturers may be held liable for public nuisance if they promoted lead-based paint for residential use with sufficient knowledge of the health hazards that would result to render their promotions unreasonable (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292).
(r) Based on extensive evidence presented at trial, a California judge in 2010 found that certain lead pigment paint manufacturers caused lead-based paint to be applied on certain residential surfaces by promoting that paint for use on those surfaces even though they knew about the serious health harms to children that would result (County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35).
(s) A California appellate court in 2017 unanimously affirmed that finding by the judge (People v. Conagra Grocery Products Company (2017) 17 Cal.App.5th 51).
(t) Certain lead pigment paint manufacturers now contend that these court decisions misstate California’s public nuisance law as applied to lead-based paint in residences in California.
(u) This act clarifies existing public nuisance law as applied to lead-based paint.

SEC. 2.

 Section 3497 is added to the Civil Code, to read:

3497.
 (a) Residential lead-based paint that affects the health of a considerable number of persons interferes with a public right.
(b) A party may be subject to liability for public nuisance if it promoted lead-based paint for a particular use with actual or constructive knowledge that such use would cause health hazards sufficiently serious to render that use unreasonable.
(c) To prove causation in an action seeking solely abatement of residential lead-based paint that has been found to interfere with a public right, an aggrieved party need not present evidence that a particular party caused a particular lead-based paint to be applied in a particular residence. Causation may be inferred from evidence that does not itself constitute direct evidence of reliance on an individual basis.

SEC. 3.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SECTION 1.Section 25316 of the Health and Safety Code is amended to read:
25316.

“Hazardous substance” means:

(a)A substance designated pursuant to Section 1321  (b)(2)(A) of Title 33 of the United States Code.

(b)An element, compound, mixture, solution, or substance designated pursuant to Section 102 of the federal act (42 U.S.C. Sec. 9602).

(c)A hazardous waste having the characteristics identified under or listed pursuant to Section 6921 of Title 42 of the United States Code, but not including any waste the regulation of which under the Solid Waste Disposal Act (42 U.S.C. Sec. 6901 et seq.) has been suspended by act of Congress.

(d)A toxic pollutant listed under Section 1317  (a) of Title 33 of the United States Code.

(e)A hazardous air pollutant listed under Section 7412 of Title 42 of the United States Code.

(f)An imminently hazardous chemical substance or mixture with respect to which the Administrator of the United States Environmental Protection Agency has taken action pursuant to Section 2606 of Title 15 of the United States Code.

(g)A hazardous waste or extremely hazardous waste as defined by Sections 25117 and 25115, respectively, unless expressly excluded.

(h)Lead-based paint that is bioavailable.

SEC. 2.Section 25323.5 of the Health and Safety Code is amended to read:
25323.5.

(a)(1)“Responsible party” or “liable person,” for the purposes of this chapter, means those persons described in Section 107(a) of the federal act (42 U.S.C. Sec. 9607(a)).

(2)(A)Notwithstanding paragraph (1), but except as provided in subparagraph (B), a person is not a responsible party or liable person, for purposes of this chapter, for the reason that the person has developed or implemented innovative investigative or innovative remedial technology with regard to a release site, if the use of the technology has been approved by the department for the release site and the person would not otherwise be a responsible party or liable person. Upon approval of the use of the technology, the director shall acknowledge, in writing, that, upon proper completion of the innovative investigative or innovative remedial action at the release site, the immunity provided by this subparagraph shall apply to the person.

(B)Subparagraph (A) does not apply in any of the following cases:

(i)Conditions at the release site have deteriorated as a result of the negligence of the person who developed or implemented the innovative investigative or innovative remedial technology.

(ii)The person who developed or implemented the innovative investigative or innovative remedial technology withheld or misrepresented information that was relevant to the potential risks or harms of the technology.

(iii)The person who implemented the innovative investigative or innovative remedial technology did not follow the implementation process approved by the department.

(3)Notwithstanding paragraph (1), for a residential property contaminated with lead-based paint that is bioavailable, a person who owned or owns the property is not a responsible party or liable person for purposes of this chapter.

(b)For the purposes of this chapter, the defenses available to a responsible party or liable person shall be those defenses specified in Sections 101(35) and 107(b) of the federal act (42 U.S.C. Secs. 9601(35) and 9607(b)).

(c)Any person who unknowingly transports hazardous waste to a solid waste facility pursuant to the exemption provided in subdivision (e) of Section 25163 shall not be considered a responsible party for purposes of this chapter solely because of the act of transporting the waste. This subdivision does not affect the liability of this person for his or her negligent acts.