BILL ANALYSIS �
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THIRD READING
Bill No: AB 440
Author: Gatto (D), et al.
Amended: 5/24/13 in Assembly
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 7-0, 7/3/13
AYES: Hill, Gaines, Calderon, Corbett, Fuller, Hancock, Leno
NO VOTE RECORDED: Jackson, Pavley
SENATE APPROPRIATIONS COMMITTEE : 6-0, 8/30/13
AYES: De Le�n, Gaines, Hill, Lara, Padilla, Steinberg
NO VOTE RECORDED: Walters
ASSEMBLY FLOOR : 75-1, 5/29/13 - See last page for vote
SUBJECT : Hazardous substances: releases: local agency
cleanup or remedy
SOURCE : Author
DIGEST : This bill authorizes local governments to remedy or
remove a release of hazardous substances and would provide
immunity from further liability to the local agency and any
person who enters into an agreement with that local agency to
develop the property as well as future property owners.
ANALYSIS : Existing law establishes, pursuant to both federal
and state law, an extensive and complex series of programs
authorizing public agencies to order owners of contaminated
property, including "brownfields", to conduct cleanups of these
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properties, including the Polanco Redevelopment Act (AB 3193,
Polanco, Chapter 1113, Statutes of 1990), 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.
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 substance 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.
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
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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.
1.Provides that local agencies shall reimburse the Regional
Water Quality Control Board or DTSC for the cost incurred in
reviewing or approving a cleanup plan submitted by a local
agency.
Background
The 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
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actual or perceived contamination of the site.
Prior/Related Legislation
SB 470 (Wright) allows cities and counties to use some of the
Community Redevelopment Law's financing, property sale, and
brownfield cleanup powers to promote economic development.
SB 1335 (Pavley, 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 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
measure failed in the Senate Appropriations Committee.
AB 1235 (Hernandez, 2011) would have applied all authority,
rights, powers, duties, obligations, and protections afforded to
a redevelopment agency under the Polanco Redevelopment Act to a
successor agency, as defined, for any property that was within a
redevelopment project of a redevelopment agency that has been
dissolved by an act of the Legislature. The measure was amended
on the Senate Floor to pertain to another subject.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
One-time costs between $80,000 and $200,000 from the Toxic
Substances Control Account (General) and Waste Discharge
Permit Fund (special) to the DTSC and the Regional Water
Quality Control Boards (RWQCBs) for the development general
cleanup guidelines to be posted on its website.
Ongoing costs of $130,000 to $650,000 from the Toxic
Substances Control Account and Waste Discharge Permit Fund
(special) for the RWQCBs and DTSC to review and approve three
action plans annually. These costs would be reimbursable from
the local agency.
Unknown, but potentially in the mid-tens of thousands of
dollars, from the Toxic Substances Control Account and Waste
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Discharge Permit Fund (special) to provide oversight on
cleanups in which a Certified Unified Program Agency is
reviewing and approving the cleanup plan. These costs would
not be reimbursable.
SUPPORT : (Verified 8/30/13)
California Building Industry Association
California Conference of Carpenters
California League of Conservation Voters
California State Council of Laborers
Center for Creative Land Recycling
Cities of: Blue Lake, Burbank, Chula Vista, El Centro,
Huntington Beach,
Lakewood, Los Angeles, Sacramento, San Marcos, Visalia, and
Vista
Harbor Association of Industry & Commerce
League of California Cities
League of California Cities - Los Angeles County Division
Mayor of Huntington Beach, Connie Boardman
Natural Resources Defense Council
ARGUMENTS IN SUPPORT : 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."
ASSEMBLY FLOOR : 75-1, 5/29/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,
Buchanan, Ian Calderon, Campos, Chau, Ch�vez, Conway, Cooley,
Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier, Beth
Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray,
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Grove, Hagman, Hall, Harkey, Roger Hern�ndez, Jones,
Jones-Sawyer, Levine, Logue, Lowenthal, Maienschein, Mansoor,
Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi,
Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel
P�rez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,
Ting, Wagner, Waldron, Weber, Wieckowski, Wilk, Williams,
Yamada, John A. P�rez
NOES: Donnelly
NO VOTE RECORDED: Chesbro, Holden, Linder, Vacancy
RM:nl 9/1/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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