BILL ANALYSIS Ó
AB 440
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ASSEMBLY THIRD READING
AB 440 (Gatto)
As Amended May 24, 2013
Majority vote
ENVIRONMENTAL SAFETY 6-1 LOCAL
GOVERNMENT 9-0
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|Ayes:|Alejo, Dahle, Bloom, |Ayes:|Achadjian, Levine, Alejo, |
| |Chesbro, Stone, Ting | |Bradford, Gordon, |
| | | |Melendez, Mullin, |
| | | |Waldron, Frazier |
|-----+--------------------------+-----+--------------------------|
|Nays:|Donnelly | | |
| | | | |
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APPROPRIATIONS 16-1
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|Ayes:|Gatto, Harkey, Bigelow, |
| |Bocanegra, Bradford, Ian |
| |Calderon, Campos, Eggman, |
| |Gomez, Hall, Ammiano, |
| |Linder, Pan, Quirk, |
| |Wagner, Weber |
| | |
|-----+--------------------------|
|Nays:|Donnelly |
| | |
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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
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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)Provides immunity from liability to the parties responsible
for the toxic material release prior to, or not included in, a
clean-up agreement.
6)Authorizes local agencies to recover cleanup costs from the
responsible party or parties for the property.
7)Provides for a public participation process when local
governments are developing a clean-up plan. The public
participation process shall include:
a) An opportunity for the public and other government
agencies to participate in the decision making process for
the removal or remedial action and the consideration of
those comments before submitting a clean-up plan for
approval;
b) A public notice 30 days before submitting a clean-up
plan to state or local agencies for approval;
c) A public meeting, if requested; and
d) The local agency shall consider the issue of
environmental justice for communities impacted by a
proposed removal or remedial action.
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8)Provides that local agencies shall reimburse the Regional
Water Quality Control Board (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 Polanco Redevelopment Act, which
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, a one-time special fund costs to in the range of
$120,000 to $300,000 to adopt guidelines and annual special fund
costs in the $300,000 range.
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
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
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replicates the provisions of the Polanco Redevelopment Act in
a new section 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 26 X1, (Blumenfield), Chapter 5, Statutes of
2011-12 First Extraordinary Session, these activities are now
subject to uncertainties and could be potentially
discontinued. AB 26 X1 requires successor agencies to
expeditiously dispose of assets and properties of former RDAs.
However, among those properties many brownfield sites 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
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."
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965
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FN: 0000833