BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session SB 820 (Hertzberg) Version: April 12, 2016 Hearing Date: April 19, 2016 Fiscal: Yes Urgency: No TH SUBJECT Hazardous Materials: California Land Reuse and Revitalization Act of 2004 DESCRIPTION Existing law, the California Land Reuse and Revitalization Act of 2004 (CLRRA), provides an innocent landowner, a bona fide purchaser, or a contiguous property owner, with a qualified immunity from liability for pollution conditions caused by a release or threatened release of a hazardous material, as specified. The CLRRA will be repealed on January 1, 2017, unless that date is extended or the CLRRA's sunset provision is removed. This bill would extend the date of repeal to January 1, 2027, and make corresponding changes to a provision that provides for continued immunity after the repeal of the Act. BACKGROUND According to the United States Environmental Protection Agency (USEPA), a brownfield is "a property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant." (See https://www.epa.gov/brownfields/brownfield-overview-and-definitio n [as of Apr. 7, 2016].) Brownfields are typically abandoned, idled, or underutilized sites, formerly used for industrial or commercial purposes, where perceived or actual contamination deters redevelopment. Costs associated with brownfield site SB 820 (Hertzberg) Page 2 of ? cleanup can be prohibitively expensive for parties who purchase these properties, particularly when unexpected hazardous materials are encountered during site remediation. Consequently, many of these sites remain vacant for years. Brownfield cleanup and redevelopment is a problem in California and across the United States. USEPA estimates that there are more than 450,000 brownfields in the U.S., approximately 90,000 of which are in California. These properties include former industrial sites, school sites, military bases, small businesses and landfills, and their idle or underused status contributes to both urban blight and urban sprawl. According to the California Department of Toxic Substances Control, "cleaning brownfield properties frees previously unavailable land for productive reuse, while taking development pressures off undeveloped open land, thereby improving and protecting the environment." (See http://www.dtsc.ca.gov/SiteCleanup/Brownfields/index.cfm [as of Apr. 7, 2016].) The large number of brownfield sites and the unavailability of sufficient public resources to remediate these sites mean that California's brownfields will not be restored to productive use without significant participation by the private sector. The California Land Reuse and Revitalization Act of 2004 (CLRRA) provides qualified immunities to certain owners and purchasers of brownfields in order to drive investment toward these polluted properties. Historically, the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and various state laws, including the Carpenter-Presley-Tanner Hazardous Substance Account Act, rendered current and previous owners of contaminated property jointly and severally liable for the cost of cleaning up hazardous materials released on a site. In 2002, Congress amended CERCLA to grant immunity to innocent and prospective purchasers, and innocent contiguous property owners, for previously occurring contamination for which the innocent or prospective purchaser had no responsibility, subject to certain conditions. Following suit, in 2004, California enacted the CLRRA, which provides innocent landowners, bona fide purchasers, and contiguous property owners, who did not cause or contribute to a release, with qualified immunity from liability under certain state laws. To take advantage of this immunity, qualifying individuals must enter into an agreement with an oversight agency that requires the individual to undertake various tasks relating to cleanup of hazardous materials on the property. SB 820 (Hertzberg) Page 3 of ? Under current law, CLRRA will sunset on January 1, 2017, but any individual who qualifies for immunity as of December 31, 2016, would retain their immunity, as specified. This bill would extend that sunset date by 10 years, to January 1, 2027, and make conforming changes to the provisions that provide for continued immunity after that date. This bill was approved by the Senate Committee on Environmental Quality on April 6, 2016, by a vote of 6-0. CHANGES TO EXISTING LAW Existing law generally imposes joint and several liability upon current and previous owners of property for "response costs" (cost of clean-up) incurred by the government or any other party associated with the remediation of a site contaminated by hazardous materials. (Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. Sec. 9601 et seq.; Carpenter-Presley-Tanner Hazardous Substance Account Act, Health & Saf. Code Sec. 25300 et seq.; Hazardous Waste Control Law, Health & Saf. Code Sec. 25100 et seq.; Keene Underground Storage Tank Cleanup Trust Fund Act, Health and Saf. Code Sec. 25299.10 et seq.) Existing law , the California Land Reuse and Revitalization Act of 2004 (CLRRA), provides innocent landowners, bona fide purchasers, and contiguous property owners who did not cause or contribute to a release with immunities from: (1) claims for response costs or other damages associated with a release or threatened release of a hazardous material from the site; or (2) agency action to require the individual to take a response action, other than the response action required in an approved CLRRA response plan, except under certain conditions. (Health & Saf. Code Sec. 25395.60 et seq.) Existing law requires a bona fide purchaser, innocent landowner, or contiguous property owner who seeks to qualify for the above immunity to enter into an agreement with an agency. Existing law requires that agreement to include the performance of a site assessment, and, if the agency determines that a response plan is necessary, to prepare and implement the response plan. (Health & Saf. Code Sec. 25395.92.) Existing law further requires individuals seeking to qualify as SB 820 (Hertzberg) Page 4 of ? bona fide purchasers, innocent landowners, or contiguous property owners to: make all appropriate inquiries into the previous ownership and uses of the site; exercise appropriate care with respect to the release or threatened release of hazardous materials at the site; provide full cooperation, assistance, and access to a person authorized to conduct response actions or natural resource restoration at the site; comply with land use controls established or relied on in connection with an approved response action at the site; not impede the effectiveness or integrity of any aspect of any remedy employed at the site in connection with a response action; comply with all requests for information or administrative subpoenas by an agency with jurisdiction; and provide all notices and satisfy reporting requirements under state and federal law with respect to the hazardous materials at the site. (Health & Saf. Code Sec. 25395.80.) Existing law provides that if there are unrecovered costs incurred by an agency at a site for which an owner of the site is not liable as an innocent landowner, bona fide purchaser, or contiguous property owner, an agency shall have a lien on the site, or may, by agreement with the owner, obtain from the owner a lien on other property or other assurance of payment for the unrecovered response costs, subject to certain conditions. (Health & Saf. Code Sec. 25395.83.) Existing law provides that an innocent landowner, bona fide purchaser, contiguous landowner, or bona fide ground tenant, may seek contribution from any person who is responsible for a discharge or release of hazardous materials for which the innocent landowner, bona fide purchaser, contiguous landowner, or bona fide ground tenant incurs agency oversight costs for the review of a response plan or oversight of the implementation of a response plan. (Health & Saf. Code Sec. 25395.85.) Existing law states that the CLRRA will not provide immunity from, among other things: liability for bodily injury or wrongful death; criminal acts; permit violations; or new releases of hazardous materials that are caused or contributed to by an innocent landowner, bona fide purchaser, SB 820 (Hertzberg) Page 5 of ? or contiguous property owner. (Health & Saf. Code Sec. 25395.86.) Existing law will repeal the CLRRA on January 1, 2017, unless a subsequent law repeals that requirement. Existing law, operative January 1, 2017, provides that any individual who qualifies for immunity as of December 31, 2016, retains their immunity, provided that they remain in compliance with the requirements of the CLRRA. (Health & Saf. Code Secs. 25395.109, 25395.110.) This bill extends the above repeal date to January 1, 2027. This bill additionally extends the operative date of the provision that provides for continuing qualified immunity to January 1, 2027. COMMENT 1.Stated need for the bill According to the author, Brownfields, or contaminated land, remain a significant problem nationwide. These properties contain potentially hazardous substances, where clean-up costs can be expensive. Additionally, buyers of brownfield sites may be liable for contamination they had no role in. The cost and risk tied to these sites deter redevelopment and contribute to urban blight. In California, the Department of Toxic Substances Control (DTSC) states that there are "an estimated 90,000 properties throughout the State - including former industrial properties, school sites, military bases, small businesses and landfills." To solve this dilemma, California enacted the Land Reuse & Revitalization Act of 2004. The act provides immunity from liability to innocent landowners, purchasers and the owners of adjacent properties. To take advantage of this benefit, qualifying individuals must enter into an agreement with the state to conduct a site assessment and clean-up the property safely. The CLRRA will become inoperative, or "sunset," on January 1, 2017. After 11 years, the program has shown its usefulness - it provides incentive to clean-up contaminated sites SB 820 (Hertzberg) Page 6 of ? responsibly, it reduces environmental and health risks, while adding economic value to polluted vacant properties. For example, in 2008 a former pickle processing plant in Hayward was converted into Eden Housing, a complex of 78 affordable housing units. Continuation of the CLRRA is of utmost importance to encourage non-polluting buyers to seek out infill sites which they would not pursue without this protection. 2.Effectiveness of the CLRRA The California Land Reuse and Revitalization Act of 2004 (CLRRA) provides eligible innocent landowners, bona fide purchasers, and contiguous property owners with immunity from liability for hazardous materials response costs and other damages, if certain qualifying criteria are met. To receive that immunity, CLRRA participants must, among other things, enter into an agreement with an oversight agency that includes "the performance of a site assessment, and, if the agency determines that a response plan is necessary [to prevent or eliminate an unreasonable risk], the preparation and implementation of a response plan." (Health & Saf. Code Secs. 25395.92(a), 25395.96.) In exchange for qualified immunity, these required actions -- generating a site assessment plan, implementing and reporting on the plan, and undertaking response actions -- result in at least a partial cleanup of the property, resulting in the redevelopment and reuse of otherwise idle brownfield sites. When the CLRRA was enacted in 2004, it contained a five-year sunset provision to allow the Legislature to review the program and determine whether it has been an effective tool for revitalizing polluted sites. SB 143 (Cedillo, Ch. 167, Stats. 2009) extended that sunset provision a further seven years and added a post-repeal provision that allowed program participants to retain their immunity if they continue to comply with all program requirements, including any response plans entered into with an oversight agency. (See Health & Saf. Code Sec. 25395.110.) While it does not appear that any comprehensive evaluation of CLRRA's effectiveness has been undertaken, several stakeholders in support of this bill describe redevelopment projects that would not have been possible without the act. For example, the City of Chula Vista writes: A local developer working in the City of Chula Vista was the first in San Diego County to effectively use CLRRA to take SB 820 (Hertzberg) Page 7 of ? ownership of a former aerospace manufacturing facility. . . . Without CLRRA this development would not have been possible and the land would have remained a vacant blighted parcel within the City of Chula Vista. Upon build-out the entire development is estimated to contribute [$] 1.3 [billion] in revenue to the San Diego region. Similarly, the City of Carson writes: Brownfields remain a significant problem nationwide, and especially in the City of Carson. Carson has a long history of dealing with contaminated soil of all types. Currently the City's Reclamation Authority is working on developing a 157-acre former landfill site, which it now owns, into a regional shopping destination. The remediation itself is over $150 million, much of which was funded by the City's former Redevelopment Agency (RDA); however, the liability issues associated with the contamination have historically made it difficult to attract quality developers to the site, which is crucial for the economic vitality of the City. CLRRA will make it more likely a quality developer will sign up for the vertical development of the site. This bill would extend CLRRA's sunset date 10 additional years to January 1, 2027, thereby providing the Legislature additional time to evaluate the act's efficacy. Support : Bay Area Council; Brown & Winters; California Association for Local Economic Development; California Business Properties Association; California Council for Environmental and Economic Balance; California Infill Builders; California Main Street Alliance; Center for Creative Land Recycling; City of Carson; City of Chula Vista; City of Redding; Civil Justice Association of California; League of California Cities; Los Angeles Neighborhood Land Trust Opposition : None Known HISTORY Source : California Association for Local Economic Development Related Pending Legislation : None Known Prior Legislation : SB 820 (Hertzberg) Page 8 of ? SB 143 (Cedillo, Ch. 167, Stats. 2009) extended the sunset date for the California Land Reuse and Revitalization Act of 2004 (CLRRA) from January 1, 2010, to January 1, 2017, and made corresponding changes to a provision that provides for continued immunity after the repeal of the Act. This bill also authorized a prospective purchaser who qualifies as a bona fide purchaser to enter into a contract to acquire a site, but prohibited the prospective purchaser from receiving immunity under the act until the prospective purchaser acquired the site. SB 989 (Committee on Environmental Quality, Ch. 510, Stats. 2006) created a program for bona fide ground tenants, as defined, to purchase contaminated property subject to certain immunities from suit for damages related to prior contamination of the property, similar to the program made available to bona fide purchasers under CLRRA. AB 2144 (Montanez, Ch. 562, Stats. 2006), among other things, revised the public participation procedures required in a response plan, under the CLRRA, for agencies with oversight over the clean-up of certain brownfield sites. AB 389 (Montanez, Ch. 705, Stats. 2004), created the California Land Reuse and Revitalization Act of 2004 (CLRRA). SB 493 (Cedillo, 2004) would have enacted the California Land Reuse and Revitalization Act. This bill died in the Assembly Appropriations Committee. Prior Vote : Senate Environmental Quality Committee (Ayes 6, Noes 0) **************