BILL ANALYSIS �
AB 440
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Date of Hearing: April 16, 2013
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 440 (Gatto) - As Introduced: February 15, 2013
SUBJECT : Brownfield hazardous substance cleanup.
SUMMARY : Authorizes local government agencies to remedy or
remove a release of hazardous substances within the boundaries
of the local agency. Specifically, this bill :
1)Allows counties, cities, or housing authorities to undertake
cleanup of a contaminated property if there is no responsible
party for the property, the responsible party fails to agree
within 60 days of request to clean up the property, or, having
agreed, fails to follow through in an appropriate and timely
manner.
2)Requires that hazardous waste cleanups carried out by local
agencies must be conducted under guidelines or remedial action
plans approved by the Department of Toxic Substances Control
(DTSC), the regional water quality control board or, under
specified circumstances, the local environmental health
agency, the local health officer or the certified unified
program agency (CUPA).
3)Provides that, if a local agency completes the cleanup of a
property in accordance with an approved remedial action plan,
the agency is immune from further liability for the hazardous
substance release that was the subject of the cleanup.
4)Provides that the immunity from further liability also extends
to any person who enters into an agreement with the local
agency to develop the property, to persons who subsequently
acquire the property, and to persons who financed the
redevelopment activities.
5)The immunity from liability would not be provided to the
following:
a) A person that was a responsible party for the release
before entering into an agreement, acquiring property, or
providing financing;
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b) A person responsible for any subsequent release of a
hazardous substance or any release of a hazardous substance
not specifically identified in the approved cleanup plan or
remedial action plan;
c) A contractor who prepares the cleanup plan or remedial
action plan, or conducts the removal or remedial action; or
d) A person that obtains an approval of a cleanup plan or
remedial action plan by fraud, negligent or intentional
nondisclosure, or misrepresentation obtained by these
means.
6)Authorizes local agencies to recover cleanup costs from the
responsible party or parties for the property.
7)Provides that local agencies shall reimburse the RWQCB or DTSC
for the cost incurred in reviewing or approving a cleanup plan
submitted by a local agency.
EXISTING LAW : Pursuant to both federal and state law,
establishes an extensive and complex series of programs
authorizing public agencies to order owners of contaminated
property, including "brownfields", to conduct cleanups of these
properties, including the following:
1.The Federal Comprehensive Environmental Cleanup, Response and
Liability Act (CERCLA 42 U.S.C. 9601 et seq.), commonly
referred to as the federal Superfund law;
2.The California Carpenter-Presley-Tanner Hazardous Substance
Account Act (commencing with Section 25300 of the Health and
Safety Code), commonly referred to as the State Superfund
Program;
3.Division 7 of the Water Code (commencing with Section 13000),
commonly referred to as the Porter-Cologne Water Quality
Control Act); and
4.Article 12.5 of the Health and Safety Code (commencing with
Section 33459), commonly referred to as the Polanco
Redevelopment Act, and authorizes community redevelopment
agencies (RDAs) to take such actions as are necessary and
consistent with state and federal cleanup laws to remediate
releases of hazardous substances on property that is part of a
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redevelopment project. The Polanco Redevelopment Act provides
authority for the RDAs to carry out hazardous waste cleanups
in accordance with the followings provisions:
a. Authorizes a RDA to undertake cleanup of a property
itself if there is no responsible party for the property,
the responsible party fails to agree within 60 days of
request to clean up the property, or, having agreed,
fails to follow through in an appropriate and timely
manner.
b. Authorizes a redevelopment agency to require that
cleanups carried out by redevelopment agencies must be
carried out under guidelines or remedial action plans
approved by the DTSC, the regional water quality control
board or, under specified circumstances, the local
environmental health agency, the local health officer or
the CUPA.
c. Provides that, if a redevelopment agency completes
the cleanup of a property in accordance with an approved
remedial action plan, the agency is immune from further
liability for the hazardous substance release that was
the subject of the cleanup. Provides that the immunity
from further liability also extends to any person who
enters into an agreement with the redevelopment agency to
develop the property, to persons who subsequently acquire
the property and to persons who financed the
redevelopment activities.
d. Authorizes redevelopment agencies to recover cleanup
costs from the responsible party or parties for the
property.
FISCAL EFFECT : Not known.
COMMENTS :
1)Need for the bill : According to the author, "There is no
clear statutory authority for redevelopment successor agencies
to compel brownfield clean up. Redevelopment Agencies used to
exercise Polanco Act powers to clean up and redevelop
brownfields. Despite the Legislature's effort to pass some
blanket bills which transferred all development powers of
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RDA's to local government or local housing authorities, it is
the opinion of legislative council, CalEPA and private
developers that this does not obviously extend to Polanco Act
powers. Additionally, even if local authorities somehow did
retain the right to utilize Polanco Act powers, under the law
as written they would only be able to exercise those powers
within redevelopment areas, which will be phased out of
existence with the end of RDA's. The Polanco Act powers need
to be saved, and the areas where they may be used must be
redefined."
1)This bill is designed to replicate the authority and immunity
from future liability provided by the Polanco Redevelopment
Act for local government in general. The bill generally
replicates the provisions of the Polanco Redevelopment Act in
a new section on of code that would apply broadly to local
agencies.
2)Brownfield clean-up by local agencies . AB 3193 (Polanco)
Chapter 1113, Statutes of 1990 (Polanco Redevelopment Act), as
part of the Community Redevelopment Act, was enacted to assist
redevelopment agencies in responding to brownfield properties
in their redevelopment areas. It prescribes processes for
redevelopment agencies to follow when cleaning up a hazardous
substance release in a redevelopment project area. It also
provides specified immunity from liability for sites cleaned
up under a cleanup plan approved by DTSC or a regional water
quality control board.
Prior to their dissolution, RDAs could use tax increment
financing in combination with Polanco Redevelopment Act
liability protection to remediate and develop brownfields
throughout California. With the RDA wind down process set
forth in AB 1X 26, (Blumenfield) Chapter 5, Statutes of 2011,
these activities are now subject to uncertainties and could be
potentially discontinued. AB 1X 26 requires successor
agencies to expeditiously dispose of assets and properties of
former RDAs. However, among those properties many brownfield
sites that will either be difficult for successor agencies to
sell or to maximize the value in the sale due to the actual or
perceived contamination of the site.
3)Arguments in support: According to the Natural Resources
Defense Council, "When RDAs were dissolved; there was no clear
successor the Polanco Act powers. This bill would renew the
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Polanco Act by transferring the powers to cities, counties,
and successor housing agencies. We support this bill because
it would encourage infill development and the cleanup of
environmental contamination by authorizing local governments
to compel cleanup of contaminated properties and reducing
local -government liability for the same."
4)Related prior legislation:
a) AB 1235 (Hernadez) 2012, would have provided that if a
RDA has been dissolved, its successor agency maintains all
the rights, powers, and duties that were vested in the
redevelopment agency prior to its dissolution, including
certain immunities for the removal of hazardous substance
releases. This bill was held in the Senate Rules
Committee.
b) SB 1335 (Pavely) 2012, would have authorized successor
agencies, with approval of their oversight board, to retain
properties that are considered brownfields for the purpose
of remediating the contamination in order to maximize their
value. The successor agencies would have been authorized
to use available financing, funds obtained from a
responsible party, existing state or federal grants or any
other funds at the disposal of the successor agency. This
bill was held in the Senate Appropriations Committee.
5)This bill is double referred to the Assembly Local Government
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Building Industry Association
California Conference of Carpenters
California State Council of Laborers
League of California Cities
Natural Resources Defense Council
State Building and Construction Trades Council of California
Opposition
None on file.
AB 440
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Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965