Government
Sep. 29, 2016
Governor signs bill to add lead-acid battery fee to fund cleanup work
Gov. Jerry Brown has signed legislation that will fund environmental cleanup by adding to a fee to lead-acid battery sales.
Daily Journal Staff Writer
Gov. Jerry Brown has signed legislation that will fund environmental cleanup by adding a fee to lead-acid battery sales.
But he warned legislators that the bill makes liability concessions he is unlikely to approve in other situations. AB 2153 allows battery manufacturers to use the fees they pay to reduce their "share of liability" in an "action brought by a private party."
The bill was inspired by the contamination caused by the Exide Technologies plant in Vernon.
California has numerous manufacturing and recycling sites for lead-acid batteries, used mainly in cars. Many are "orphan sites," with no currently solvent owner to hold legally and financially responsible.
In a signing message, Brown noted that the bill will generate an estimated $24 million a year in cleanup fees in exchange for allowing "a battery manufacturer to use these fees against future liability."
The message added: "This approach is a departure from how the state enforces environmental law. This model should be the exception, not the rule."
"We were setting a new precedent," said the bill's author, Assemblywoman Cristina Garcia, D-Bell Gardens. "There are a lot of concerns about unintended consequences. The situation we had here is unprecedented and needed us to think outside of the box."
The Vernon plant is just outside of Garcia's district and has affected many of her constituents. She said she had been in touch with the Brown administration throughout August and made several changes in order to get his signature.
"The governor didn't want to send a message that whenever an industry has to pay a fee, it can always expect a credit," said Sean B. Hecht, co-executive director of the Emmett Institute on Climate Change and the Environment at UCLA School of Law.
Hecht consulted with Garcia's office on the bill. AB 2153 was supported by many companies that faced liability for sending batteries to recycling plants like the one in Vernon. "The industry understood the benefit to paying these fees now to create a disincentive for the state to sue them later on," Hecht said.
Over the summer, environmental groups mobilized to eliminate several industry-backed amendments that had been written into the bill.
These included the creation of a "revolving fund" that would need to be depleted before the Department of Toxic Substances Control (DTSC) could pursue cleanup money from companies.
Other provisions would have reduced penalties under the California Hazardous Waste Control Act of 1972 and required regulators to notify violators and give them time to fix problems before issuing fines.
Debbie Raphael, who headed the DTSC from 2011 to 2014, praised removing sections that "enabled manufacturers to renege on their responsibilities." But she said the money is "a drop in the bucket" and noted the $1 fee paid by industry expires after just five years.
"I'm grateful to the author for pointing out the problem for cleaning up these sites that have no responsible parties," Raphael said. "My fear is that the Legislature will think they have fixed the problem."
The Consumer Attorneys of California expressed early support for the bill, which contains a provision that doesn't affect the ability to bring a private cause of action. The industry-backed Battery Council International did not return a call seeking comment.
Brown also vetoed AB 2478, a CAOC-backed bill to extend the statute of limitations for private civil actions against Exide and the Southern California Gas Company over the leak at its Aliso Canyon gas storage facility.
In a statement, the governor said the bill could eliminate the incentive for these companies to settle lawsuits.
malcolm_maclachlan@dailyjournal.com
Malcolm Maclachlan
malcolm_maclachlan@dailyjournal.com
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