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AB-2851 Lead exposure: abatement.(2017-2018)

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Date Published: 08/28/2018 09:00 PM
AB2851:v95#DOCUMENT

Amended  IN  Senate  August 28, 2018
Amended  IN  Assembly  May 25, 2018
Amended  IN  Assembly  April 12, 2018
Amended  IN  Assembly  March 19, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill
No. 2851

Introduced by Assembly Member Grayson
(Principal coauthor: Senator Hertzberg)

February 16, 2018

An act to add Section 65080.02 to the Government Code, relating to transportation. 3497 to the Civil Code, and to add Section 105310.5 to the Health and Safety Code, relating to lead exposure, making an appropriation therefor, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


AB 2851, as amended, Grayson. Regional transportation plans: traffic signal optimization plans. Lead exposure: abatement.
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 specifically provide that the presence of lead-based paint on or in private or public residential properties or structures, whether considered individually, collectively, or in the aggregate, is not a public nuisance.
Existing law, the Childhood Lead Poisoning Prevention Act of 1991, requires the State Department of Public Health to adopt regulations establishing a standard of care at least as stringent as the most recent federal Centers for Disease Control and Prevention screening guidelines, whereby all children are evaluated for risk of lead poisoning by health care providers during each child’s periodic health assessment. The standard of care, among others, is required to provide that, upon evaluation, those children determined to be at risk for lead poisoning are required to be screened. Existing law defines “lead poisoning” to mean the disease present when the concentration of lead in whole venous blood reaches or exceeds levels constituting a health risk, as specified in the most recent federal Centers for Disease Control and Prevention guidelines for lead poisoning as determined by the department, or when the concentration of lead in whole venous blood reaches or exceeds levels constituting a health risk as determined by the department, as specified. Existing law creates the Childhood Lead Poisoning Prevention Fund, consisting of fees imposed on manufacturers and other persons formerly, presently, or both formerly and presently engaged in the stream of commerce of lead or products containing lead, or who are otherwise responsible for identifiable sources of lead that have significantly contributed historically, currently contribute, or both have significantly contributed historically and contribute currently to environmental lead contamination. The moneys in the fund are required to be expended, upon appropriation by the Legislature, for the purposes of the act.
This bill would establish the Childhood Lead Poisoning Prevention Abatement Fund in the State Treasury. The bill would require moneys in the fund to be allocated, upon appropriation by the Legislature, for the purpose of funding the abatement of lead paint in this state, except for $300,000,000 that would be continuously and directly appropriated to specified cities and counties. The bill would impose a fee, for deposit into the fund, on each architectural coating distributor, as defined. The fee would be calculated as specified, would be initially due and payable no later than January 31, 2019, and would be payable only until January 31, 2028. The fee would be administered and collected by the California Department of Tax and Fee Administration. The bill would bar any action seeking to assert abatement liability against any architectural coating distributor while the distributor pays the fee.
The bill would provide that the total amount of fees collected would be $475,000,000 from the commencement of the fee until January 31, 2028. The bill would also provide that the fees would be $47,500,000 in any single fiscal year.
The bill would provide that its provisions would not become operative unless the Secretary of State certifies to the California Department of Tax and Fee Administration prior to October 15, 2018, that the plaintiffs in People v. ConAgra Grocery Products Company (2017) 17 Cal.App.5th 51 have reached a binding settlement with all defendants.
This bill would declare that it is to take effect immediately as an urgency statute.

Existing law requires designated transportation planning agencies to, among other things, prepare and adopt a regional transportation plan. Existing law requires a regional transportation plan to include a policy element, an action element, a financial element, and, if the transportation planning agency is also a metropolitan planning organization, a sustainable communities strategy. Existing law requires each transportation planning agency to consider and incorporate into its regional transportation plan the transportation plans of cities, counties, districts, private organizations, and state and federal agencies, as appropriate.

Existing law designates the Metropolitan Transportation Commission (MTC) as the regional transportation planning agency for the 9-county San Francisco Bay area, with various powers and duties relative to transportation planning, programming, and funding. Existing law establishes the Department of Transportation and the California Transportation Commission and provides that the department has full possession and control of all state highways and all property and rights in property acquired for state highway purposes, and authorizes and directs the department to lay out and construct all state highways between the termini designated by law and on the locations as determined by the commission.

This bill would authorize each city located within the jurisdiction of MTC to develop and implement a traffic signal optimization plan intended to reduce greenhouse gases and particulate emissions, and reduce travel times, and the number of stops and fuel use. The bill would also require the Department of Transportation to coordinate with each city that develops a traffic signal optimization plan pursuant to these provisions to ensure that any traffic signals owned or operated by the department are adjusted and maintained in accordance with the plan.

Vote: MAJORITY2/3   Appropriation: NOYES   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

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

3497.
 (a) (1) Notwithstanding any other law, the presence of lead-based paint on or in private or public residential properties, whether considered individually, collectively, or in the aggregate, is not a public nuisance.
(2) This section does not limit the authority of federal, state, or local governments to require a property owner to remediate a lead hazard pursuant to existing law.
(3) This section does not apply to cases pending on, pending on appeal on, or filed on or before June 28, 2018, nor does it apply to any injunctions, judgments, or other remedies issued in those cases.
(b) For the purposes of this section, the following definitions apply:
(1) “Appurtenance” means accessories to an architectural structure, including, but not limited to, hand railings, cabinets, bathroom and kitchen fixtures, fences, raingutters and downspouts, window screens, lampposts, heating and air-conditioning equipment, other mechanical equipment, large fixed stationary tools, and concrete forms.
(2) “Paint” means any product which is used as, or usable as, or contained in, a coating applied to the interior or exterior surfaces of structures and their appurtenances, or to portable buildings, mobilehomes, pavements, or curbs. “Paint” includes, but is not limited to, ordinary house and trim paints, primers, undercoaters, and traffic coatings used on residential structures and appurtenances.
(3) “Structure” shall be liberally construed to include any building, or part thereof, used for housing or human habitation, as set forth in Division 13 (commencing with Section 17000) of the Health and Safety Code, and any building, or part thereof, used by the public, as set forth in Division 12.5 (commencing with Section 16000) of the Health and Safety Code, or any building or structure, or part thereof, where a child under six years of age may be present. The term “structure” shall include the surrounding soil on the property on which the structure is located.

SEC. 2.

 Section 105310.5 is added to the Health and Safety Code, to read:

105310.5.
 (a) The Childhood Lead Poisoning Prevention Abatement Fund is hereby established in the State Treasury. Moneys shall be allocated from the fund, upon appropriation by the Legislature except as provided in subdivision (j), for the purpose of funding the abatement of lead paint in this state in accordance with this section.
(b) (1) A fee, in addition to the fee imposed pursuant to Section 105310, shall be assessed and imposed on each architectural coating distributor in accordance with this section for deposit into the fund.
(2) Fees imposed pursuant to this section shall be administered and collected by the California Department of Tax and Fee Administration in accordance with Part 22 (commencing with Section 43001) of Division 2 of the Revenue and Taxation Code only until January 31, 2028.
(3) Fees assessed pursuant to this section shall be initially due and payable no later than January 31, 2019, and shall be due and payable only until January 31, 2028.
(c) The total amount of fees collected pursuant to this section, excluding any late payment fee, shall be four hundred seventy-five million dollars ($475,000,000) from the commencement of the fee until January 31, 2028. The department shall collect forty-seven million five hundred thousand dollars ($47,500,000) in fees in any single fiscal year. The fees collected pursuant to this section and the earnings therefrom shall be used solely for the purposes of implementing this section.
(d) The fees collected pursuant to this section shall be deposited into the fund. Moneys in the fund shall only be expended for the purposes of this section, upon appropriation by the Legislature except as provided in subdivision (j). The costs of administration of the fund shall not be payable from moneys in the fund. All interest earned on the moneys which have been deposited into the fund shall be retained in the fund.
(e) (1) (A) Three hundred million dollars ($300,000,000) of the fees imposed by this section shall be assessed as follows:
(i) Fifty percent of the total fee amount shall be assessed equally upon the entities described in subparagraph (A) of paragraph (4) of subdivision (m). To the extent that one or both of those entities become insolvent or otherwise do not pay the fee assessed in any year, the fee assessed against that entity or those entities shall not be assessed against another entity.
(ii) Fifty percent of the total fee amount shall be assessed against the entities described in paragraph (3) of subdivision (m) using the formula set forth in subparagraph (B), as that formula existed at the time of the effective date of this section, except that neither an entity that pays the fee assessed pursuant to clause (i) nor an entity described in subparagraph (B) of paragraph (4) of subdivision (m) shall be assessed a fee pursuant to this clause.
(B) The formula for calculating the amount to be paid by each entity described in clause (ii) of subparagraph (A) is the formula set forth in Section 33020 of Article 2 of Chapter 6 of Division 1 of Title 17 of the California Code of Regulations, as that section read on January 1, 2018, except that the number in the formula represented by B shall be reduced by the total gallons of architectural coatings distributed in or about 1978 by the entities described in subparagraph (B) of paragraph (4) of subdivision (m), and the number in the formula represented by D shall represent the total fee amount.
(2) One hundred seventy-five million dollars ($175,000,000) of the total fee imposed by this section shall be assessed as follows:
(A) Fifty percent of the total fee amount shall be assessed equally upon the entities described in subparagraph (B) of paragraph (4) of subdivision (m). To the extent that one or more of those entities become insolvent or otherwise do not pay the fee assessed in any year, the fee assessed against that entity or those entities shall not be assessed against another entity.
(B) Fifty percent of the total fee amount shall be assessed against the entities described in paragraph (3) of subdivision (m) using the formula set forth in subparagraph (B) of paragraph (1), as that formula existed at the time of the effective date of this section, except that an entity that pays the fee assessed pursuant to subparagraph (A) shall not be assessed a fee pursuant to this clause.
(f) The fee imposed pursuant to this section shall be the responsibility of the architectural coating distributor and shall not be passed directly on to the consumer.
(g) (1) The fees collected pursuant to this section shall be the exclusive liability of the architectural coating distributor for abatement liability, as provided for in subdivision (h).
(2) Subject to subdivision (h), this section bars any action seeking to assert abatement liability against any architectural coating distributor who is current on its payment of the assessed fee, but does not affect tort claims for personal injury or wrongful death that otherwise may be asserted.
(h) The exemption from liability afforded by subdivision (g) applies to each architectural coating distributor that is subject to the fees assessed pursuant to this section. That exemption remains in effect only during each fiscal year for which the distributor has paid the fees assessed pursuant to this section.
(i) Late payment of the fee assessed pursuant to this section shall result in a 10 percent interest penalty.
(j) (1) Notwithstanding any other provision of this section, three hundred million dollars ($300,000,000) of the moneys in the fund shall be continuously and directly appropriated to the 10 cities and counties that were involved in People v. ConAgra Grocery Products Company (2017) 17 Cal.App.5th 51, as follows:
(A) The County of Alameda, jointly with the City of Oakland: 9 percent.
(B) The City of San Diego: 7 percent.
(C) The City and County of San Francisco: 7 percent.
(D) The County of Los Angeles: 55 percent.
(E) The County of Monterey: 2 percent.
(F) The County of San Mateo: 5 percent.
(G) The County of Santa Clara: 9 percent.
(H) The County of Solano: 2 percent.
(I) The County of Ventura: 4 percent.
(2) Funds appropriated pursuant to paragraph (1) may be used by the 10 cities and counties for inspection, education, abatement, administrative, and other costs associated with lead paint remediation, including costs and fees associated with People v. ConAgra Grocery Products Company (2017) 17 Cal.App.5th 51.
(3) Funds distributed under subparagraph (A) of paragraph (1) shall be deposited into the treasury of the County of Alameda for the benefit, in part, of the City of Oakland, and may not be expended until such time as the County of Alameda and the City of Oakland have reached agreement on a coordinated plan for spending or otherwise dividing the funds between them.
(4) One hundred seventy-five million dollars ($175,000,000) of the moneys in the fund shall be allocated to all counties in this state other than those described in paragraph (1).
(k) Architectural coating distributors shall not counterclaim, seek contribution, or demand an equitable set-off from any public entity or any property owner who receives funding to inspect or abate lead paint that has been allocated pursuant to this section or pursuant to any settlement in People v. ConAgra Grocery Products Company (2017) 17 Cal.App.5th 51.
(l) This section does not impair, diminish, or otherwise alter or modify the obligations imposed on former manufacturers pursuant to this chapter or pursuant to the Architectural Paint Recovery Program in Chapter 5 (commencing with Section 48700) of Part 7 of Division 30 of the Public Resources Code.
(m) For the purposes of this section, the following definitions apply:
(1) “Abatement liability” means any and all claims, damages, injunctive relief, inspection, risk assessment, abatement, or other losses, liabilities, obligations, costs, or expenditures arising from the presence of lead paint or lead pigment in or on any structure.
(2) “Appurtenance” means accessories to an architectural structure, including, but not limited to, hand railings, cabinets, bathroom and kitchen fixtures, fences, raingutters and downspouts, window screens, lampposts, heating and air-conditioning equipment, other mechanical equipment, large fixed stationary tools, and concrete forms.
(3) “Architectural coating distributor” has the same meaning set forth in Section 33004 of Article 1 of Chapter 6 of Division 1 of Title 17 of the California Code of Regulations, as that section read on January 1, 2018.
(4) “Architectural coating distributor” also includes, for purposes of this section, without regard to whether those entities currently pay the fee assessed pursuant to Section 105310, any of the following:
(A) Only two of the three entities found liable in People v. ConAgra Grocery Products Company (2017) 17 Cal.App.5th 51, ConAgra Grocery Products Company and the Sherwin-Williams Company.
(B) All three entities found liable in People v. ConAgra Grocery Products Company (2017) 17 Cal.App.5th 51, ConAgra Grocery Products Company, NL Industries, Inc., and the Sherwin-Williams Company.
(C) One of the three entities found liable in People v. ConAgra Grocery Products Company (2017) 17 Cal.App.5th 51, NL Industries, Inc.
(5) “Fund” means the Childhood Lead Poisoning Prevention Abatement Fund.
(6) “Paint” means any product which is used as, or usable as, or contained in, a coating applied to the interior or exterior surfaces of structures and their appurtenances, or to portable buildings, mobilehomes, pavements, or curbs. “Paint” includes, but is not limited to, ordinary house and trim paints, primers, undercoaters, and traffic coatings used on residential structure and appurtenances.
(7) “Structure” shall be liberally construed to include any building, or part thereof, used by the public, as set forth in Division 12.5 (commencing with Section 16000), and any building, or part thereof, used for housing or human habitation, as set forth in Division 13 (commencing with Section 17000), or any building or structure, or part thereof, where a child under six years of age may be present. The term “structure” shall include the surrounding soil on the property on which the structure is located.

SEC. 3.

 This act shall not become operative unless both of the following occur:
(a) The Secretary of State certifies to the California Department of Tax and Fee Administration that the plaintiffs in People v. ConAgra Grocery Products Company (2017) 17 Cal.App.5th 51 have reached a binding settlement with all defendants.
(b) The certification described in subdivision (a) occurs prior to October 15, 2018.

SEC. 4.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
To protect public health and ensure that lead abatement programs receive funding from the fees assessed pursuant to this act as soon as possible, it is necessary that this act take effect immediately.
SECTION 1.Section 65080.02 is added to the Government Code, to read:
65080.02.

(a)Each city located within the jurisdiction of the Metropolitan Transportation Commission may develop and implement a traffic signal optimization plan intended to reduce greenhouse gases and particulate emissions, and reduce travel times, and the number of stops and fuel use.

(b)The Department of Transportation shall coordinate with each city that develops a traffic signal optimization plan pursuant to subdivision (a) to ensure that any traffic signals owned or operated by the department are adjusted and maintained in accordance with the plan.