Source: http://californiawatch.org, February 9, 2012
By: Corey G. Johnson
Under pressure from construction, architect and other industry groups, state legislators killed a bill that would have closed a loophole used by businesses to evade pollution lawsuits.
Sponsored by Assemblyman Warren Furutani, D-Long Beach, AB 1207 arose out of a lawsuit in Carson, where residents discovered in 2009 that for nearly five decades, their families have been exposed to dangerous levels of cancer-causing toxins emanating from their properties. There is no state law that explicitly puts time limits on pollution cases, which often are discovered decades after the toxic dumping occurs.
However, Shell Oil Co. and a local developer were able to initially get the resident lawsuit thrown out by claiming the state’s 10-year time limit on “construction defect” claims had expired.
Key supporters of the Carson residents told Furutani that new legislation was needed, as other companies were using the state’s construction defects time limits to escape legal responsibility for pollution-related damages.
But construction industry lobbyists argued that Furutani’s bill made architects, builders and developers needlessly vulnerable to lawsuits.
The American Institute of Architects’ California Council, Associated Builders and Contractors of California and 40 other groups sent a letter to Mike Feuer, D-West Hollywood, chairman of the Assembly Judiciary Committee, warning that California’s weak economy was threatened by Furutani’s legislation and could force business owners into “possible bankruptcy.”
“This bill would remove this outside limitation and thereby expand the statute of limitations on personal or real property lawsuits when there was an allegation of exposure to a hazardous material, even if it was in relation to remediation activities. In so doing, AB 1207 unnecessarily exposes a large number of industries to increased unjustified liability that may even lead to possible bankruptcy.
At a time when our economy is struggling to recover and when the state needs jobs, such an unjustified increased liability on businesses and governments is ill-advised. For these reasons we urge your “no” vote. ”
Three years ago, the state Department of Toxic Substances Control unearthed evidence of Carson’s pollution while investigating another case. Subsequent investigations by the Los Angeles Regional Water Quality Control Board have found alarming levels of cancer-causing benzene and explosive methane gas throughout the Carson neighborhood.
Shell Oil, which owned and used the land for drilling and dumping waste, sold the property in the 1960s but didn’t remove the toxins before the sale. The water quality board has issued an advisory urging residents to avoid physical contact with the soil in their yards and has ordered Shell Oil to clean up the properties.
In 2009, hundreds of Carson residents filed multiple lawsuits against Shell Oil and a local developer, alleging the companies never told property owners that their homes rested atop an abandoned oil farm and chemical dumpsite. The lawsuits also accused Shell of failing to clean up the contaminated soil.
Los Angeles County Superior Court Judge William Highberger, an appointee of former Gov. Pete Wilson, initially rejected the residents’ claims, citing the state’s 10-year limit on construction defect lawsuits. He has since rescinded that ruling and the case is still ongoing.
Furutani said his bill would prevent future legal misinterpretations over pollution claims, according to a legislative analysis.
“AB 1207 intends to correct a flaw in current law that could be – and currently is being – interpreted to allow corporate polluters to walk away from dangerous pollution as long as it is concealed for ten years. If the pollution is not discovered, as is often the case, for ten, twenty, thirty years or longer, the polluter gets away with it and leaves others to deal with the health and environmental ramifications.
Clearly the Legislature never intended the Statue of Repose or any other limitations be afforded to polluters or other illegal dischargers and it needs to be corrected to prevent further abuse of the system. The unscrupulous use of the Statute of Repose by polluters to protect themselves from liability undermines most environmental laws in the State of California and puts homeowners at financial and health risk. ”
The bill officially died last week in Feuer’s committee. Feuer didn’t respond to requests for comment. Furutani said he was disappointed but not deterred.
“Although this legislation would not have directly helped the residents of the Carson Carousel Tract, it would have prevented this from happening to homeowners in the future,” Furutani said. “We are conducting further research for viable legislation that would ensure that polluters are held responsible to clean up toxic pollution they create, no matter how many years pass before it is discovered.”