BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 820
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|Author: |Hertzberg |
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|Version: |1/5/2016 |Hearing |4/6/2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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SUBJECT: Hazardous materials: California Land Reuse and
Revitalization Act of 2004
ANALYSIS:
Existing law:
1) Pursuant to both federal and state law, establishes 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 following:
a) The Comprehensive Environmental Cleanup, Response and
Liability Act (CERCLA 42 U.S.C. 9601 et seq.), commonly
referred to as the federal Superfund law;
b) The Carpenter-Presley-Tanner Hazardous Substance Account
Act (commencing with Section 25300 of the Health and Safety
Code), commonly referred to as the State Superfund Program;
c) Division 7 of the Water Code (commencing with Section
13000), commonly referred to as the Porter-Cologne Water
Quality Control Act);
d) Article 12.5 of the Health and Safety Code (commencing
with Section 33459), commonly referred to as the Polanco
Redevelopment Act;
e) Chapter 6.10 of the Health and Safety Code (commencing
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with Section 25401), commonly referred to as the Escutia
Law;
f) Chapter 6.65 of the Health and Safety Code (commencing
with Section 25260), commonly referred to as the Unified
Agency Review of Hazardous Substance Release Site law or the
"AB 2061" process;
g) Article 8.5 of the Health and Safety Code (commencing
with Section 25395.10), commonly referred to as the CLEAN
Program (Clean Loans and Environmental Assistance to
Neighborhoods; and,
h) Article 8.7 of Chapter 6.8 of the Health and Safety Code
(commencing with Section 25395.40), commonly referred to as
the FAIR Program (Financial Assurance and Insurance for
Redevelopment).
2) Pursuant to the California Land Reuse and Revitalization Act of
2004 (CLRRA), provides qualified innocent landowners, bona fide
purchasers or contiguous property owners with immunity from
liability for certain hazardous materials response costs or
other damages based on meeting stipulated conditions, including
the following:
a) Participants agree to assess and cleanup the property as
necessary;
b) Participants seeking to qualify for immunity must enter
into an agreement with an oversight agency;
c) Response actions must be as protective of public health
and the environment as actions required by relevant cleanup
standards contained in the Health and Safety and Water
Codes.
The Act is repealed as of January 1, 2017, unless another
enacted statute deletes or extends that date.
This bill deletes the repeal date of CLRRA, thereby continuing the
Act indefinitely.
Background
1) California Brownfields. The original purpose of CLRRA (the
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statute for which this measure seeks to eliminate the sunset)
was stated as follows "The underutilization of brownfields in
the state results in environmental, social, and economic
detriments to the state and citizens?.The brownfields in
California represents an opportunity for the development of
housing, parks and mixed use developments.
According to the Department of Toxic Substances Control, there
are approximately 90,000 brownfields currently in California.
2) Previous legislation:
AB 389 (Montanez, Chapter 705, Statutes of 2004) enacted the
California Land Reuse and Revitalization Act of 2004, which
provides that an innocent landowner, a bona fide purchaser, or
a contiguous property owner, as defined, qualifies for immunity
from liability for response cost or damage claims under
specified state statutory and common laws that impose liability
upon an owner or occupant of property, for pollution conditions
caused by a release or threatened release of a hazardous
material on, under, or adjacent to that property, if the
innocent purchaser, bona fide purchaser, or contiguous property
owner meets specified conditions. The legislation specified a
sunset date of January 1, 2010.
SB 143 (Cedillo, Chapter 167, Statutes of 2009) extended the
CLRRA sunset date from January 1, 2010 to January 1, 2017.
Comments
1) Purpose of Bill. According to the author, by extending CLRRA,
SB 820 preserves a great tool for cleaning up and transforming
polluted properties. The author states that property
purchasers and developers are hesitant to buy and develop on
brownfields because of the stigma and risk tied to them, which
results in contaminated lands that remain vacant for years.
The author asserts that California's brownfields get another
chance of becoming productive uses of space when liability
protection is provided.
The sponsor provided a list of approximately 40 sites where
CLRRA has been used to facilitate remediation of brownfields.
Many of these projects have been completed in just the last few
years. An example offered by the sponsor of the success of
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CLRRA is the Hayward Pickle Plant. This was the first CLRRA
agreement. The property was cleaned up under and a completion
letter was issued in less than a year. An affordable housing
developer acquired the property and the Eden Housing affordable
housing project opened about five years ago.
2) Liability protection for whom? Providing liability protection
for prospective purchasers does not remove the risk from
exposure to the contamination present at the brownfield but
rather just alters who can be held accountable for correcting
or mitigating the hazards and the risk of exposure after the
completion of the cleanup and project. It is unclear, if a
site is remediated and at a later date an exposure risk is
found who will be held accountable? Does the state assume
responsibility if there is no responsible party to recover
additional cleanup costs?
3) Remove or extend the Sunset? There are many virtues to
legislative program sunsets, including the opportunity for the
Legislature to revisit the performance and value of such
programs. To date, there is only a limited basis for
evaluating the performance of CLRRA and most of the projects
have been completed in the last year or so. The long-term
consequences of CLRRA, especially with regard to the state's
potential liability for chemical contamination, suggest that it
is prudent to periodically review the success of these
remediation projects.
An amendment should be taken to extend the sunset date for 10
years rather than remove it entirely.
DOUBLE REFERRAL: If this measure is approved by this committee,
the do pass motion must include the action to re-refer the bill to
the Senate Judiciary Committee.
SOURCE: California Association for Local Economic
Development
SUPPORT:
Association of Commercial Real Estate Investment Trusts -
Northern and Southern California
Bay Area Council
Building Owners and Managers Association of California
California Business Properties Association
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California Infill Federation
California Main Street Alliance
Center for Creative Land Recycling
City of Carson
City of Chula Vista
City of Redding
Civil Justice Association of California
Commercial Real Estate Developers Association
Institute of Real Estate Management
International Council of Shopping Centers
League of California Cities
Los Angeles Neighborhood Land Trust
NAIOP of California
National Association of Real Estate Investment Trusts
Retail Industry Leaders Association
OPPOSITION:
None received
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