BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 440
Author: Gatto (D), et al.
Amended: 9/6/13 in Senate
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 materials: releases: local agency
cleanup or remedy
SOURCE : Author
DIGEST : This bill authorizes local governments to investigate
and cleanup a release of hazardous materials in a blighted area,
as determined by the local agency, and provides 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.
Senate Floor Amendments of 9/6/13 provide specified definitions,
clarify inconsistent terms, and prescribe specified processes
for state and local government oversight.
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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
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 material cleanups carried out by
local agencies must be conducted under guidelines 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 cleanup plan, the
agency is immune from further liability for the hazardous
material 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 cleanup agreement.
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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 cleanup plan 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 cleanup plan.
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.
2. Requires local agencies to contact DTSC or appropriate
regional water quality control board (regional board) prior
to issuing a notice to a property owner if the property is on
the National Priority List or under a current voluntary or
involuntary cleanup agreement or order under state law. DTSC
or the regional board has 10 days to object. If there is
objection, the bill prescribes a process for resolution.
3. Prescribes that before a local agency takes action the
agency must:
A. Complete an investigation plan, if investigation is not
complete;
B. Submit the investigation plan and a cost recovery
agreement to the regional board or DTSC; and
C. After completion of the investigation plan, have a
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cleanup plan prepared by an independent qualified
contractor.
1. Provides that the responsible party may appeal 60 day notice
issued by a local government to the local governing body
within 10 days of receipt of the notice.
2. Specifies how a local agency shall reimburse DTSC or the
regional board for costs incurred in reviewing or approving
investigation or cleanup plans.
3. It states that it is the intent of the Legislature that
local agencies pursue reimbursement for investigation and
cleanup costs, but states that it is up to the discretion of
the local agency to determine to what extent cost recovery is
practicable.
4. Provides definitions for "blighted area," "cleanup or clean
up," "cleanup plan," "investigation," and "investigation
plan," as specified.
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 material 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.
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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
Discharge Permit Fund (special) to provide oversight on
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cleanups in which a Certified Unified Program Agency is
reviewing and approving the cleanup plan. These costs would
not be reimbursable.
SUPPORT : (Verified 9/9/13)
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 9/9/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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