BILL ANALYSIS Ó
AB 1235
Page 1
Date of Hearing: May 11, 2011
ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT
Norma Torres, Chair
AB 1235 (Hernández) - As Amended: May 5, 2011
SUBJECT : Redevelopment property: hazardous substance release:
immunities
SUMMARY : Provides qualified immunities from liability, if
certain conditions are met, for brownfield cleanup activities
conducted by "successor agencies" assuming the authority and
duties of redevelopment agencies, if redevelopment agencies are
dissolved by Legislative act. Specifically, this bill:
1)Provides that if a redevelopment agency (RDA) has been
dissolved by an act of the Legislature and its successor
agency, as defined, maintains all the rights, powers, and
duties that were vested in the redevelopment agency prior to
its dissolution, then certain immunities that previously
applied to the redevelopment agency shall apply to the
successor agency for the removal of hazardous substance
releases, as specified, from property that was within a
redevelopment project of the redevelopment agency prior to its
dissolution.
2)Defines "successor agency" as the county, city, or city and
county that authorized the creation of the redevelopment
agency.
EXISTING LAW :
1)Authorizes a redevelopment agency to take any actions that it
determines are necessary and that are consistent with other
state and federal laws to remedy or remove a release of
hazardous substances on, under, or from property within a
project area, whether the agency owns that property or not,
subject to certain specified conditions (Health and Safety
Code Section 33459.1).
2)Provides qualified immunities from liability to a
redevelopment agency or its agent that undertakes and
completes an action to remedy or remove a release of certain
hazardous substances from property within a redevelopment
project, for that release only and as long as the actions are
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in accordance with a cleanup or remedial action plan prepared
by a qualified independent contractor and approved by the
appropriate state or local authorities (Health & Safety Code
Section 33459.3(a)).
3)Limits the immunity to the release or releases specifically
identified in the approved cleanup or remedial action plan and
not for any subsequent releases not specifically identified
(Health & Safety Code Section 33459.3(e)).
4)Authorizes extension of immunities only to specified persons,
including but not limited to employees or agents of the
redevelopment agency, and any person who entered into an
agreement with the RDA for redevelopment of the property if
the agreement requires the person to remove or remedy a
hazardous substance release with respect to that property
(Health & Safety Code Section 33459.3(e)).
5)Prohibits extension of immunities to specified persons,
including but not limited to any person who was a responsible
party for the release, and any contractor who prepares the
cleanup or remedial action plan or who conducts the removal or
remedial action itself (Health & Safety Code Section
33459.3(f)).
FISCAL EFFECT : None.
COMMENTS :
This bill, sponsored by the Center for Creative Land Recycling,
represents the forward-thinking judgment of the author that the
Legislature ought not to wait until RDA's are officially
dissolved before it starts to develop policy for a post-RDA
landscape in California. Although the fate of redevelopment
agencies is not known at this time, this bill seeks to address
the limited issue of immunities for cleanup of brownfield
properties in redevelopment, in the contingency that
redevelopment agencies are dissolved by Legislative action and
cease to exist. This bill would extend to a city or county
("successor agency") that succeeds to the role previously held
by the former redevelopment agency the same qualified immunities
from liability that were available to the RDA prior to its
dissolution, with respect to removal of hazardous substances
from a brownfield redevelopment project.
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Purpose of the bill: According to the author, the bill is
needed at this time in order to preserve existing legal
protections to entities wishing to redevelop brownfield
properties without interruption in case redevelopment agencies
are dissolved. The author states: "The governor and Democratic
Leaders have indicated that as part of closing the 2011-12 State
Budget they intend to eliminate Redevelopment Areas in order to
achieve a $1.7 billion in savings. The purpose of the
governor's proposal is to gain revenue for the State. It is not
to eliminate the other benefits associated with Redevelopment
Areas. AB 1235 preserves one of those other benefits. Without
this bill, development will be further hindered in what was once
California Redevelopment Areas.
A few months ago, this Legislative body was one vote shy of
approving the Governor's proposal to eliminate redevelopment
agencies. It is important to note that this proposal did not
address how legal immunities were going to be transferred
upon the dissolution of RDAs. It is difficult to predict
when or if this proposal will be brought up again but we
need a vehicle to move along the legislative process that
explicitly addresses legal immunities so as to not risk
having redevelopment come to a standstill if the Legislature
approves an elimination of RDAs. Absent this bill, if that
scenario were to play out, several months would pass before
we could pass and approve a bill to address this."
Redevelopment agencies and the Polanco Act. Since 1945, state
law has given local city and county government the authority to
form a redevelopment agency with the specific purpose of
revitalizing deteriorated or blighted areas of the community.
According to the California Redevelopment Association, there are
nearly 400 active RDAs throughout the state, all of which are
overseen either by a local city council, county board of
supervisors, or a separate appointed board, and thus are
publicly accountable. With respect to contaminated properties
(also known as brownfields), RDAs are often in a good position
to take an active role in the cleanup and redevelopment of these
sites to attract private investment.
In 1990, the Legislature passed and the governor signed AB 3193
(Polanco), Chaptered 1113, ("the Polanco Redevelopment Act", or
"the Act") which granted redevelopment agencies with qualified
immunity from liability under the state Superfund and other
environment liability cleanup laws for hazardous substance
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cleanup actions conducted pursuant to an approved remedial plan.
Research of the legislative history of the Act shows that its
purpose was to "encourage the cleanup and redevelopment of sites
contaminated by hazardous materials . . . by providing a
qualified immunity from liability for future cleanup costs."
(Senate Judiciary Committee bill analysis, August 7, 1990.)
Proponents of AB 3193 contended at the time that RDAs and
developers were prepared to expend financial resources to clean
up these sites, but were reluctant to do so because of the
liability exposure under then-existing law for a less than
perfect cleanup operation. (Id.) This is essentially the same
argument that proponents of this bill now make-that cleanup of
brownfield sites will "come to a standstill" unless immunities
from liability are extended to the actors who would otherwise
invest the resources needed to do the cleanup.
Importantly, the Legislature approved AB 3193 only after
establishing a number of specific parameters for the qualified
immunity provided under the bill, all of which continue to exist
within Section 33459.3. These parameters include: (1) the RDA
must follow and properly complete a remedial action plan
approved by a specified state agency for the immunity to apply;
(2) the plan must be prepared by an independent contractor, not
by any employee of the agency that would benefit from the
immunity; (3) the immunity applies only to releases identified
in the plan, and not to any subsequent or unidentified release
of a hazardous substance; (4) the immunity is available only to
the RDA, its employees and agents, and other specified persons
who have entered into agreements with the RDA; and (5) immunity
is not available to certain persons, particularly any person
responsible for the hazardous substance release.
This bill would extend the qualified immunity provided by the
Polanco Act to cities and counties should RDAs be dissolved.
Arguments in support : The Center for Creative Land Recycling,
the sponsor of the bill, writes in support, "As the governor and
Legislature debate the 2011-12 State Budget and the future of
Redevelopment Areas, it is prudent and timely for the
Legislature to concurrently develop policy to preserve those
benefits of Redevelopment Areas that have proved successful and
that do not have a state budget consequence. Without this bill,
development may be further hindered in the even Redevelopment
Areas are eliminated."
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The California Association of Realtors also supports the bill,
asserting that the immunities afforded to RDAs by the Polanco
Act deserve to be extended to successor interests because they
have successfully "served to promote the remediation of urban
brownfields and have allowed communities throughout the state to
recapture and rehabilitate blighted properties." The Realtors
further contend that this bill "will help to ensure continued
investment in the remediation and redevelopment of these vital
urban parcels."
Pending Legislation : SB 77 (Committee on Budget and Fiscal
Review) would dissolve redevelopment agencies across the state
and reallocate funds previously allocated to those agencies.
The definition of "successor agencies" in this bill corresponds
to the definition of that term in SB 77. That bill passed the
Senate by a vote of 22 to2, but failed passage by the necessary
3/4 margin in the Assembly by a vote of 53 to23 and is currently
pending a motion to reconsideration.
Double referred : The Assembly Committee on Rules referred AB
1235 to the Committee on Judiciary and Housing and Community
Development. The bill passed the Committee on Judiciary on May
3, 2011, by a vote of 9 to 0.
REGISTERED SUPPORT / OPPOSITION :
Support
Center for Creative Land Recycling (sponsor)
California Association of Realtors
Opposition
None on file.
Analysis Prepared by : Lisa Engel / H. & C.D. / (916) 319-2085