BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 440
Author: Gatto (D), et al.
Amended: 9/12/13 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 on a blighted
property, 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 9/12/13 (1) add a definition for
"blighted property,"
(2) clarify that a housing authority may act as a "local agency"
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if the housing authority is an entity assuming the housing
functions of a former redevelopment agency (RDA), as specified,
(3) clarify the definition of a Phase I and Phase II
environmental assessment to make it consistent with current
Health and Safety Code, (4) add additional orders to the list of
action which, if taken by the Department of Toxic Substances
Control (DTSC) or the Regional Water Quality Control Board
(Regional Board), require local governments to ask permission
from the regulatory entity before using Polanco Redevelopment
Act (Polanco Act) powers, (5) remove the requirement for DTSC or
the Regional Board to post general guidelines online, and (6)
increase the time a responsible party can appeal a ruling of a
local agency from 10 days to 30 days.
Senate Floor Amendments of 9/6/13 provide specified definitions,
clarify inconsistent terms, and prescribe specified processes
for state and local government oversight.
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 Act (AB 3193, Polanco, Chapter
1113, Statutes of 1990), which authorizes community 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.Defines "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.
2.Allows counties, cities, or housing authorities to undertake
cleanup of a property that the local agency has found to be
within a blighted area due to the presence of hazardous
materials following a Phase I or Phase II environmental
assessment 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.
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3.Clarifies, 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.
4.Requires that hazardous material cleanups carried out by local
agencies must be conducted under guidelines approved by the
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.
5.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.
6.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.
7.Provides immunity from liability to the parties responsible
for the toxic material release prior to, or not included in, a
cleanup agreement.
8.Authorizes local agencies to recover cleanup costs from the
responsible party or parties for the property.
9.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
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D. The local agency shall consider the issue of
environmental justice for communities impacted by a
proposed cleanup plan.
10.Clarifies instances, as specified, when the local agency must
contact DTSC or the appropriate regional board prior to
issuing a notice pursuant to this bill.
11.Provides that local agencies shall reimburse the Regional
Board or DTSC for the cost incurred in reviewing or approving
a cleanup plan submitted by a local agency.
12.Requires local agencies to contact DTSC or appropriate
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 30 days to
object. If there is objection, the bill prescribes a process
for resolution.
13.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 director; and
C. After completion of the investigation plan, have a
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 30 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.Adds additional orders to the list of action which, if take by
DTSC or the Regional Board, require local governments to ask
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permission from the regulatory entity before using Polanco Act
powers.
4.Defines "Phase I" and "Phase II" environmental assessments to
be consistent with Health and Safety Code definitions and
uses.
5.Specifies that an investigation or an investigation plan does
not include Phase I or Phase II environmental site assessment.
6.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.
7.Provides definitions for "blighted area," "blighted property,"
"cleanup or clean up," "cleanup plan," "investigation," and
"investigation plan," as specified.
8.Clarifies that the definitions apply to this bill - not the
article of the Health and Safety Code.
Background
The Polanco Redevelopment Act, as part of the Community
Redevelopment Act, was enacted to assist RDAs in responding to
brownfield properties in their redevelopment areas. It
prescribes processes for RDAs 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
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
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agencies to sell or to maximize the value in the sale due to the
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 Act to a successor
agency, as defined, for any property that was within a
redevelopment project of an RDA 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 Internet Web site.
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
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dollars, from the Toxic Substances Control Account and Waste
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 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
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Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray,
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:ne 9/12/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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