BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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          |SENATE RULES COMMITTEE            |                        AB 440|
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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 León, 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, Chávez, 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 Hernández, Jones,  
            Jones-Sawyer, Levine, Logue, Lowenthal, Maienschein, Mansoor,  
            Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi,  
            Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel  
            Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,  
            Ting, Wagner, Waldron, Weber, Wieckowski, Wilk, Williams,  
            Yamada, John A. Pérez
          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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