BILL ANALYSIS Ó
AB 440
Page 1
( Without Reference to File )
CONCURRENCE IN SENATE AMENDMENTS
AB 440 (Gatto)
As Amended September 12, 2013
Majority vote
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|ASSEMBLY: |75-1 |(May 29, 2013) |SENATE: |39-0 |(September 12, |
| | | | | |2013) |
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Original Committee Reference: E.S. & T. M.
SUMMARY : Authorizes a local agency to investigate and clean up
releases or spills within the boundaries of 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. Defines
"local agency" as a county, a city, a city and county, or a housing
authority.
The Senate amendments :
1)Authorize a local agency to take action that it determines
necessary to investigate or clean up a release or spills on
blighted property that the local agency has found to be within a
"blighted area" and the local agency's boundaries, whether the
local agency owns that property or not.
2)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 of
property, or reduction or lack of proper utilization of property.
3)Require the local agency to contact the Department of Toxic
Substances Control (DTSC) or the appropriate California Regional
Water Quality Control Board (regional water board) prior to
issuing a notice to the responsible party for a spill on blighted
property that is listed on the National Priority List or a release
that would be subject to a cease and desist order, a cleanup and
abatement order, a voluntary cleanup agreement, or other specified
investigation, remedial, or cleanup orders.
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4)Require a local agency, before taking action to cleanup a release,
to submit an investigation plan and a cleanup plan to the regional
water board or the DTSC for approval, and to comply with public
participation requirements.
5)Require the Site Designation Committee, an existing committee
within the California Environmental Protection Agency, to resolve
disputes between local agencies and the DTSC and regional water
boards. However, the designee of the DTSC or the regional water
board shall not participate in the review of a dispute involving
the DTSC or a regional water board, respectively.
6)Require the regional water board or the DTSC to act on the
investigation plan within 30 days of receipt of the investigation
plan.
7)Provide that the responsible party may appeal a 60-day notice to
propose an investigation plan and schedule, by filing a written
request with the clerk of the local agency within 30 days of
receipt of the notice.
8)Require the local agency to reimburse the DTSC or the regional
water board, within 60 days of being presented with a bill, for
the costs incurred in reviewing or approving investigation plans
and cleanup plans.
9)Allow the DTSC and regional water boards to develop a payment plan
with the local agency to repay costs over a longer period of time.
Disputed amounts would be subject to the meet and confer process,
and if the dispute remains after meeting and conferring, then the
local agency may utilize any review processes maintained by the
DTSC or the regional water board.
AS PASSED BY THE ASSEMBLY , this bill:
1)Allowed counties, cities, or housing authorities to remedy or
remove a release of hazardous substances from 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)Required that hazardous waste cleanups carried out by local
agencies be conducted under guidelines or remedial action plans
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approved by the Department of Toxic Substances Control (DTSC), the
regional water quality control board, the local environmental
health agency, the local health officer, or the certified unified
program agency (CUPA).
3)Provided 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)Provided 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)Provided that immunity from liability does not apply to the
parties responsible for the toxic material release prior to, or
not included in, a clean-up agreement.
6)Authorized local agencies to recover cleanup costs from the
responsible party or parties for the property.
7)Provided for a public participation process when local governments
are developing a clean-up plan.
8)Required local agencies to reimburse the DTSC or the regional
water board for the costs incurred in reviewing or approving a
cleanup plan or a removal or remedial plan.
FISCAL EFFECT : According to the Senate Appropriations Committee:
1)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 boards for the
development of general cleanup guidelines to be posted on its Web
site.
2)Ongoing costs of $130,000 to $650,000 from the Toxic Substances
Control Account and Waste Discharge Permit Fund for the DTSC and
regional water boards to review and approve three action plans
annually. These costs would be reimbursable from the local
agency.
3)Unknown, but potentially in the mid-tens of thousands of dollars,
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from the Toxic Substances Control Account and the Waste Discharge
Permit Fund to provide oversight on cleanups in which a CUPA is
reviewing and approving the cleanup plan. These costs would not
be reimbursable.
COMMENTS :
1)According to the author, there is no clear statutory authority for
redevelopment successor agencies to compel brownfield clean up.
Redevelopment Agencies (RDAs) 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 Counsel, California
Environmental Protection Agency (Cal EPA) 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, they would only be able to
exercise those powers within redevelopment areas, which will be
phased out of existence with the end of RDAs.
2)This bill is designed to replicate the authority and immunity from
future liability provided by the Polanco Redevelopment Act for
local government in general. The bill generally replicates the
provisions of the Polanco Redevelopment Act in a new set of code
sections that would apply broadly to local agencies.
3)AB 3193 (Polanco), Chapter 1113, Statutes of 1990 (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
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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.
Analysis Prepared by : Manny Hernandez / E.S. & T.M. / (916)
319-3965
FN:
0002862