BILL ANALYSIS Ó
AB 440
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Date of Hearing: May 1, 2013
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 440 (Gatto) - As Introduced: February 15, 2013
SUBJECT : Hazardous substances: releases: local agency remedy
or 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 :
1)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 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.
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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 : Unknown
COMMENTS :
1)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 are 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.
2)This bill is designed to replicate the authority and immunity
from future liability provided by the Polanco Redevelopment
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Act for local government. The bill generally replicates the
provisions of the Polanco Redevelopment Act in a new section
of code that would apply broadly to local agencies.
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 RDAs to local
government or local housing authorities, it is the opinion of
Legislative Counsel, 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 RDAs. The Polanco Act powers need to be
saved, and the areas where they may be used must be
redefined."
3)Support arguments: Supporters argue that the bill would renew
the Polanco Act by transferring the powers to cities,
counties, and successor housing agencies and that the powers
under the Polanco Act need to be saved.
Opposition arguments : None on file.
4)This bill was heard by the Environmental Safety and Toxics
Committee on April 16, 2013, and passed on a 6-1 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
California Building Industry Association
California Conference of Carpenters
California State Council of Laborers
Cities of Lakewood, Vista
Harbor Association of Industry & Commerce
League of California Cities
Natural Resources Defense Council
State Building and Construction Trades Council of California
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Opposition
None on file
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958