BILL ANALYSIS Ó
AB 440
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 440
AUTHOR: Gatto
AMENDED: September 6, 2013
FISCAL: Yes HEARING DATE:
September 12, 2013
URGENCY: No CONSULTANT: Rachel Machi
Wagoner
SUBJECT : HAZARDOUS MATERIALS: RELEASES: LOCAL AGENCY
CLEANUP
SUMMARY :
Existing law :
1)Dissolved redevelopment agencies (RDAs) and community
development agencies (CDAs), as of February 1, 2012, and
provides for the designation of a successor agency, as
defined, to resolve the final matters of the agencies and to
dispose of assets and properties in accordance with certain
procedures.
2)Under the Polanco Redevelopment Act (the Polanco Act) which
was part of the Community Redevelopment Law (CRL), assisted
redevelopment agencies in responding to brownfield properties
in their redevelopment areas. It prescribed processes for
redevelopment agencies to follow when remediating a hazardous
substance release in a redevelopment project area. It also
provided specified immunity from liability for sites cleaned
up under a cleanup plan approved by the Department of Toxic
Substances Control (DTSC) or a Regional Water Quality Control
Board (RWQCB). It provided limited liability protections for
RDAs and future purchasers of properties remediated under the
Polanco Act.
This bill, as previously heard by the committee , authorizes
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local government agencies to remedy or remove a release of
hazardous substances within the boundaries of the local agency.
The amendments :
1)Make various changes to terminology throughout the legislation
to ensure consistency with existing law.
2)Add a requirement that the local government entity make a
finding concerning a "a blighted area" prior to taking action
pursuant to this bill.
3)Define "blighted area" as an area in which the local agency
determines there are vacancies, abandonment of property, or a
reduction or lack of proper utilization of property, and the
presence or perceived presence of a release or releases of
hazardous material contributes to the vacancies, abandonment,
or reduction or lack of proper utilization of property.
4)Clarify that an investigation of contamination on the site
must occur before a local agency can move forward.
5)Require local agencies to contact DTSC or the 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.
6)Prescribe that before a local agency takes action the agency
must:
a) Complete an investigation plan, if investigation is not
complete.
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b) Submit the investigation plan and a cost recovery
agreement to the regional board or DTSC.
c) After completion of the investigation plan, have a
cleanup plan prepared by an independent qualified
contractor.
7)Provide that the responsible party may appeal the 60-day
notice issued by a local government to the local governing
body within 10 days of receipt of the notice as specified.
8)Specify how a local agency shall reimburse DTSC or the
regional board for costs incurred in reviewing or approving
investigation or cleanup plans.
9)State 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.
Proposed amendments to be taken on the Senate Floor :
1)Clarify that the definitions in the bill apply to this chapter
- not the article of the Health and Safety Code.
2)Define "blighted property" as property with the presence or
perceived presence of a release or releases of hazardous
material that contributes to the vacancies, abandonment of
property, or reduction or lack of proper utilization of
property.
3)Specify that investigation for the purposes of this chapter
does not include either a Phase I or Phase II environmental
site assessment.
4)Clarify, for the purposes of this chapter, that a housing
authority may act as a "local agency" if the housing authority
is an entity assuming the housing functions of a former
redevelopment agency as specified.
5)Define "Phase I" and "Phase II" environmental assessments to
be consistent with Health and Safety Code definitions and
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uses.
6)Clarify that a "release" of hazardous materials, as defined
for this chapter, occurs into the "environment on blighted
property."
7)Define "site designation committee" as specified.
8)Specify that a local agency can take any action the local
agency determines is necessary to investigate or clean up a
release "from a blighted property within a blighted area
within the local agencies boundaries due to the presence of
hazardous materials following a Phase I or Phase II
environmental assessment?"
9)Clarify the specific instances when the local agency shall
contact DTSC or the appropriate regional board prior to
issuing a notice pursuant to this chapter.
10)Specify that DTSC or the regional board shall have 30 days
(rather than 10 days) to object to the local agency issuing
the notice and specify the process for resolving the
objection.
11)Remove the requirement that DTSC and the regional boards
adopt and post general guidelines with regard to taking action
to clean up a release pursuant to this chapter.
12)Specify that a responsible party shall have 30 days (rather
than 10 days) to appeal a notice issued by a local agency
pursuant to this chapter.
13) Provide other technical and clarifying amendments
concerning the oversight of the local agency by DTSC or the
regional board pursuant to this chapter.
COMMENTS :
1)Referral to the Committee pursuant to Senate Rule 29.10 . AB
440 was heard by the Senate Environmental Quality Committee on
July 3, 2013. It passed the Senate Environmental Quality
Committee on a vote of 7 to 0.
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On September 6, 2013, amendments taken on the Senate Floor
made substantive changes to the legislation.
Consistent with Senate Rule 29.10 the Senate Rules Committee
has referred the amended bill to the Senate Environmental
Quality Committee for a hearing of the Assembly amendments.
2)Purpose of Bill . According to the author, when RDAs were
dissolved, there was no clear successor to the Polanco Act
powers. This bill would renew the Polanco Act by transferring
the powers to cities, counties, and successor housing
agencies.
Additionally, the author states that the Polanco Act was
restricted to contaminated sites within redevelopment project
areas, which will be phased out with the dissolution of RDAs.
The jurisdiction of the Polanco Act must be updated and
redefined if the powers are to continue to be exercised to
clean up properties. This bill would allow cities, counties,
and successor housing agencies to use Polanco Act powers
anywhere within their jurisdiction, not just in redevelopment
project areas.
The author believes that this bill would encourage infill
development and the cleanup of brownfields by authorizing
local governments to compel cleanup of contaminated
properties and reducing local government liability for the
same.
3)New definition of "blight" .
The definition of "blight" for the purposes of the Community
Redevelopment Act (Health and Safety Code §33031) was as
follows:
33031. (a) This subdivision describes physical conditions
that cause blight:
(1) Buildings in which it is unsafe or unhealthy
for persons to live or work. These conditions may be
caused by serious building code violations, serious
dilapidation and deterioration caused by long-term
neglect, construction that is vulnerable to serious
damage from seismic or geologic hazards, and faulty or
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inadequate water or sewer utilities.
(2) Conditions that prevent or substantially
hinder the viable use or capacity of buildings or
lots. These conditions may be caused by buildings of
substandard, defective, or obsolete design or
construction given the present general plan, zoning,
or other development standards.
(3) Adjacent or nearby incompatible land uses that
prevent the development of those parcels or other
portions of the project area.
(4) The existence of subdivided lots that are in
multiple ownership and whose physical development has
been impaired by their irregular shapes and inadequate
sizes, given present general plan and zoning standards
and present market conditions.
(b) This subdivision describes economic conditions that
cause blight:
(1) Depreciated or stagnant property values.
(2) Impaired property values, due in significant
part, to hazardous wastes on property where the agency
may be eligible to use its authority as specified in
Article 12.5 (commencing with Section 33459).
(3) Abnormally high business vacancies, abnormally
low lease rates, or an abnormally high number of
abandoned buildings.
(4) A serious lack of necessary commercial
facilities that are normally found in neighborhoods,
including grocery stores, drug stores, and banks and
other lending institutions.
(5) Serious residential overcrowding that has
resulted in significant public health or safety
problems. As used in this paragraph, "overcrowding"
means exceeding the standard referenced in Article 5
(commencing with Section 32) of Chapter 1 of Title 25
of the California Code of Regulations.
(6) An excess of bars, liquor stores, or
adult-oriented businesses that has resulted in
significant public health, safety, or welfare
problems.
(7) A high crime rate that constitutes a serious
threat to the public safety and welfare.
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This bill provides a broader definition which will govern
this chapter.
4)Arguments in Support . The dissolution of redevelopment
agencies has many negative consequences for future development
opportunities in our urban cores. One major consequence is
lost access to "Polanco Act" authority which allowed for the
expedited removal of hazardous substances from existing urban
parcels, in accordance with state-approved clean-up plans.
Costs of clean-up could be recovered from responsible parties.
Upon completion of remediation actions, immunity for
liability was provided to both the local agency in charge of
cleaning up the property as well as future developers and
owners.
AB 440 would authorize cities, counties and housing
authorities to use the powers granted to former redevelopment
agencies to clean up affected properties and remove barriers
to future development. California's policy goals of
greenhouse gas reduction, transit-oriented development and
reducing sprawl rely heavily on the revitalization of existing
urban core areas. AB 440 will ensure that local agencies have
continued access to a brownfield remediation tool that has
proven so valuable in the past.
5)Arguments in Opposition . According to the opposition, "While
allowing local agencies to initiate the cleanup of
contaminated sites is a good idea and was previously embodied
in the Polanco Act, having these same local agencies take the
lead on actual cleanup, while being governed with some vague
guidelines from the Water Board and DTSC is a prescription for
disaster.
Environmental justice communities need more protections from
pollution, not less. Allowing contaminated sites to be
cleaned up without the direct oversight of competent agencies
is a prescription which ensures that new schools, affordable
housing projects, hospitals, preschools, elder care homes, and
residences may be constructed on property that is not safe."
SOURCE : Author
SUPPORT : California Building Industry Association (CBIA)
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California Conference of Carpenters
California League of Conservation Voters (CLCV)
California State Council of Laborers
City of Blue Lake
City of Burbank
City of Chula Vista
City of El Centro
City of Huntington Beach
City of Los Angeles
City of Lakewood
City of Sacramento
City of San Marcos
City of Visalia
City of Vista
Harbor Association of Industry and Commerce
League of California Cities
Los Angeles County Division of the League
of California Cities
Natural Resources Defense Council
Planning and Conservation League
OPPOSITION : Apostolic Faith Center
California Communities Against Toxics
California Kids IAQ
California Safe Schools
Coalition for a Safe Environment
Community Dreams
Del Amo Action Committee
Desert Citizens Against Pollution
Los Angles Environmental Justice Network
Our Right to Know
Physicians for Social Responsibility- Los Angeles
Society for Positive Action
Save the Burrowing Owl Committee
Save the Quality of Life of Otay Mesa
West Long Beach Neighborhood Association